exv4w1






EXHIBIT 4.1




ARTICLES SUPPLEMENTARY




OF




8% CUMULATIVE CONVERTIBLE PREFERRED STOCK

SERIES A-T, A-Y, B-T AND B-Y




OF




THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.




 






Pursuant to Section 2-208(b) of

the Maryland General Corporation Law




 






     The Great Atlantic & Pacific Tea Company, Inc., a Maryland corporation (the
“Company”), hereby certifies that:



          FIRST: The charter of the Company (as amended, corrected or supplemented from time to time,
the “Charter”) authorizes the issuance of up to three million (3,000,000) shares of
preferred stock, without par value per share.




          SECOND: The Charter expressly grants to the Board of Directors of the Company (the “Board
of Directors”) the authority to provide for the issuance of the shares of preferred stock in
series, and to establish from time to time the number of shares to be included in each such series
and to fix the designation, powers, preferences and rights of the shares of each such series and
the qualifications, limitations or restrictions thereof.




          THIRD: Pursuant to the authority conferred upon the Board of Directors by Section VI of the
Charter, the Board of Directors, by action duly taken on July 23, 2009, adopted resolutions
authorizing the classification, issuance and sale of up to 1,400,000 shares of the Company’s
preferred stock as described herein.




     FOURTH: Therefore, pursuant to the authority of the Board of Directors under the authority
conferred upon it by the Charter and by action duly taken pursuant thereto, the Board of Directors
does hereby establish, create, authorize, classify and provide for the issue of four separate
series of preferred stock having the following designation, voting powers, preferences, conversion
and other rights, qualifications, limitations as to dividends, terms and conditions of redemption
and restrictions:



Section 1. Designation.




          The designation of the series of preferred stock shall be “8% Cumulative Convertible Preferred
Stock, Series A-T” (the “Series A-T Convertible Preferred Stock”), “8% Cumulative
Convertible Preferred Stock, Series A-Y” (the “Series A-Y Convertible Preferred Stock” and,
together with the Series A-T Convertible Preferred Stock, the “Series A Convertible Preferred
Stock”), “8% Cumulative Convertible Preferred Stock, Series B-T” (the “Series B-T
Convertible Preferred Stock”) and “8% Cumulative Convertible Preferred Stock, Series B-Y” (the
“Series B-Y Convertible Preferred Stock” and, together with the Series B-T Convertible
Preferred Stock, the “Series B Convertible Preferred Stock”). The Series A Convertible
Preferred Stock and the Series B Convertible Preferred Stock are together referred to as the
“Convertible Preferred Stock”. The Convertible Preferred Stock will rank equally with
Parity Stock, if any, with respect to the payment of dividends and in the distribution of assets in
the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of
the Company, and will rank senior to Junior Stock and junior to Senior Stock, if any, with respect
to the payment of dividends and/or in the distribution of assets in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the Company, as applicable.




 









 





          The Convertible Preferred Stock initially issued to the Tengelmann Parties shall be issued as
Series A-T Convertible Preferred Stock, and the Convertible Preferred Stock initially issued to the
Yucaipa Parties shall be issued as Series A-Y Convertible Preferred Stock. Each share of Series A-T
Convertible Preferred Stock shall automatically convert into one share of Series B-T Convertible
Preferred Stock upon a sale or other transfer of such share of Series A-T Convertible Preferred
Stock to a Person other than a Tengelmann Party; provided that if the Conversion
Stockholder Approval has been obtained, each share of Series A-T Convertible Preferred Stock shall
automatically convert into one share of Series A-Y Convertible Preferred Stock upon a sale or other
transfer of such share of Series A-T Convertible Preferred Stock to a Yucaipa Party. Each share of
Series A-Y Convertible Preferred Stock shall automatically convert into one share of Series B-Y
Convertible Preferred Stock upon a sale or other transfer of such share of Series A-Y Convertible
Preferred Stock to a Person other than a Yucaipa Party; provided that each share of Series
A-Y Convertible Preferred Stock shall automatically convert into one share of Series A-T
Convertible Preferred Stock upon a sale or other transfer of such share of Series A-Y Convertible
Preferred Stock to a Tengelmann Party.




Section 2. Number of Shares.




          The number of authorized shares of Convertible Preferred Stock shall be 1,400,000, which shall
consist of 350,000 shares of Series A-T Convertible Preferred Stock, 350,000 shares of Series A-Y
Convertible Preferred Stock, 350,000 shares of Series B-T Convertible Preferred Stock and 350,000
shares of Series B-Y Convertible Preferred Stock. That number may from time to time be increased
(but not in excess of the total number of authorized shares of preferred stock as set forth in the
Charter which remain unissued) or decreased (but not below the number of shares of Convertible
Preferred Stock then outstanding plus the number of shares of Convertible Preferred Stock issuable
upon the exercise of options or rights then outstanding) by further resolution duly adopted by the
Board of Directors or any duly authorized committee thereof and by the filing of articles
supplementary with and the acceptance for record of such articles supplementary by the State
Department of Assessments and Taxation of Maryland pursuant to the provisions of the MGCL, stating
that such increase or reduction, as the case may be, has been so authorized. The Company shall have
the authority to issue fractional shares of Convertible Preferred Stock.




Section 3. Definitions. As used herein with respect to Convertible Preferred Stock:




          “ABL Credit Agreement” means the Company’s five-year amended and restated asset-based
senior secured revolving credit agreement, dated as of December 27, 2007, among the Company, the
other borrowers party thereto and the lenders party thereto, Bank of America, N.A., as
administrative agent and collateral agent, and Banc of America Securities LLC, as lead arranger, as
in effect on the Issue Date or as amended thereafter.




          “Additional Shares” has the meaning set forth in Section 11(a).




          An “Affiliate” of any Person means another Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with, such
first Person.




          “Amended and Restated Tengelmann Stockholder Agreement” means the Amended and Restated
Tengelmann Stockholder Agreement, intended to be dated as of August 4, 2009, between the Company
and Tengelmann.




          “Amended and Restated Yucaipa Stockholder Agreement” means the Amended and Restated
Yucaipa Stockholder Agreement, intended to be dated as of August 4, 2009, among the Company and
Yucaipa.




          “Applicable Rate” means, with respect to any Dividend Period, (i) the Base Rate in
connection with any dividends paid in cash and (ii) the Base Rate plus 1.50% per annum in
connection with any dividend paid pursuant to the Convertible Preferred Stock PIK Dividend
Provision.




          “Applicable Series A Board Representation Entitlement” means the Series A-T Board
Representation Entitlement or Series A-Y Board Representation Entitlement, as applicable.




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          “Applicable Series A Convertible Preferred Stock” means Series A-T Convertible
Preferred Stock or Series A-Y Convertible Preferred Stock, as applicable.




          “Applicable Series A Holders” means the Series A-T Holders or the Series A-Y Holders,
as applicable.




          “Applicable Series A Preferred Director” means a Series A Preferred Director elected
by the Series A-T Holders or the Series A-Y Holders, as applicable.




          “Authorized Capital Stock Charter Amendment Approval” means the approval of an
amendment to the Charter increasing the number of authorized shares of Common Stock by up to
100,000,000 shares by the affirmative vote of holders entitled to cast two-thirds of the votes
entitled to be cast on the matter.




          “Base Rate” means 8.00% per annum.




          “Beneficial Owner” and words of similar import have the meaning assigned to such terms
in Rule 13d-3 promulgated under the Exchange Act; provided, however, that for
purposes of any calculation of Tengelmann Percentage Interest, Yucaipa Percentage Interest or
Voting Power, such terms have the meaning assigned them in Rule 13d-3 promulgated under the
Exchange Act as in effect on the Issue Date, but without reference to whether or not an Equity
Security is exercisable or convertible for Voting Stock in less than 60 days.




          “Board of Directors” has the meaning set forth in the recitals above.




          “Business Combination”, with respect to any Person, means any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation) of all or substantially all of the assets of such Person and its subsidiaries, taken
as a whole, to any other Person or (ii) any transaction (including any merger or consolidation) the
consummation of which would result in any other Person (or, in the case of a merger or
consolidation, the shareholders of such other Person) becoming, directly or indirectly, the
Beneficial Owner of more than 50% of the Voting Stock and/or Equity Securities (other than debt
securities) of such Person (measured in the case of Voting Stock by Voting Power rather than number
of shares).




          “Business Day” means any day in which banks are not required or authorized by law to
close in New York, New York.




          “Capital Stock” of any Person means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of such Person and all warrants or options
to acquire such capital stock.




          “cash” means U.S. legal tender.




          “Certificated Common Stock” has the meaning set forth in Section 24(b).




          “Certificated Preferred Stock” has the meaning set forth in Section 24(a).




          “Certificated Security” has the meaning set forth in Section 24(b).




          “Charter” has the meaning set forth in the recitals above.




          “Closing Price” of the Common Stock on any date means the closing sale price per share
(or, if no closing sale price is reported, the average of the bid and asked prices or, if more than
one in either case, the average of the average bid and the average asked prices) on such date as
reported by The New York Stock Exchange or, if the shares of Common Stock are not reported by The
New York Stock Exchange, in composite transactions for the principal U.S. national or regional
securities exchange (including The Nasdaq Stock Market) on which the Common Stock is traded. If the
Common Stock is not listed for trading on a U.S. national or regional securities exchange on the
relevant date, the Closing Price will be the last quoted bid price for the Common Stock in the
over-the-counter




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market on the relevant date as reported by the Pink Sheets LLC or similar organization. If the
Common Stock is not so quoted, the Closing Price will be the average of the mid-point of the last
bid and asked prices for the Common Stock on the relevant date from each of at least three
independent nationally recognized investment banking firms selected by the Company for this
purpose.




          “Common Stock” means the common stock of the Company, par value $1.00 per share, or
any other shares of the capital stock of the Company into which such shares of common stock shall
be reclassified or changed.




          “Company” has the meaning set forth in the recitals above.




          “Constituent Person” has the meaning set forth in Section 14(a).




          “Continuing Director” means a director who either was a member of the Board of
Directors on the Issue Date or who becomes a member of the Board of Directors subsequent to the
Issue Date and whose appointment, election or nomination for election by the Company’s stockholders
is duly approved by a majority of the members of the Board of Directors at the time of such
approval (either by specific vote or by approval of the proxy statement issued by the Company on
behalf of the Board of Directors in which such individual is named as nominee for director) who
were either members of the Board of Directors on the Issue Date or whose appointment, election or
nomination for election was previously so approved.




          “Conversion Agent” means the Transfer Agent acting in its capacity as conversion agent
for the Convertible Preferred Stock, and its successors and assigns.




          “Conversion Date” has the meaning set forth in Section 8(d).




          “Conversion Notice” has the meaning set forth in Section 8(d).




          “Conversion Price” at any time means, for each share of Convertible Preferred Stock, a
dollar amount equal to $1,000 (the Liquidation Preference) divided by the Conversion Rate
(resulting initially in a Conversion Price of approximately $5.00).




          “Conversion Rate” means, for each share of Convertible Preferred Stock, 200 shares of
Common Stock, subject to adjustment as set forth herein.




          “Conversion Stockholder Approval” means the approval, as required pursuant to New York
Stock Exchange Rule 312, of (x) the shares of Convertible Preferred Stock when voting together with
the Common Stock becoming entitled to cast the full number of votes on an as-converted basis and
(y) the issuance of the full amount of Common Stock upon the exercise of conversion rights of the
Convertible Preferred Stock, in each case by the affirmative vote of holders of a majority of the
votes present and entitled to vote at the stockholders’ meeting duly called, noticed and convened
for such purpose, at which the total votes cast represent over 50% in interest of all Voting Stock
entitled to vote on such proposal.




          “Conversion Stockholder Approval Default” has the meaning set forth in
Section 4(d)(ii).




          “Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Convertible Preferred Stock PIK Dividend Provision” has the meaning set forth in
Section 4(a).




          “Dividend Payment Date” has the meaning set forth in Section 4(a).




          “Dividend Period” has the meaning set forth in Section 4(a).




          “Dividend Record Date” has the meaning set forth in Section 4(a).




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          “Equity Security” means (i) any common stock or other Voting Stock; (ii) any
securities convertible into or exchangeable for common stock or other Voting Stock; or (iii) any
options, rights or warrants (or any similar securities) to acquire common stock or other Voting
Stock.




          “Ex-Dividend Date” means the first date upon which a sale of the Common Stock does not
automatically transfer the right to receive the relevant distribution from the seller of the Common
Stock to its buyer.




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




          “Exchange Property” has the meaning set forth in Section 14(a).




          “Fundamental Change” means the occurrence of any of the following events after the
date hereof:





     (i) a “person” or “group” (each within the meaning of Section 13(d)(3) of the Exchange
Act), other than a Permitted Holder, has become the direct or indirect Beneficial Owner of
shares of Common Stock representing more than 50% of the total voting power in the aggregate
of classes of the Company’s Capital Stock entitled to vote generally in the election of
directors; provided that a transaction covered under (iii)(A) below where no person
or group other than a Permitted Holder becomes the direct or indirect Beneficial Owner of
Common Stock representing more than 50% of the total voting power of the Company’s Capital
Stock entitled to vote generally in the election of directors of the ultimate parent company
of the continuing, surviving or successor company shall not constitute a Fundamental Change
for purposes of this clause (i); or




     (ii) the first day on which a majority of the members of the Board of Directors does
not consist of Continuing Directors; or




     (iii) a consolidation, merger or binding share exchange, any conveyance, transfer,
sale, lease or other disposition of all or substantially all of the Company’s assets to
another Person or any recapitalization, reclassification or other transaction in which all
or substantially all of the Common Stock is exchanged for or converted into cash, securities
or other property, other than:




     (A) any transaction pursuant to which holders of the Company’s Capital Stock
immediately prior to the transaction have the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of Capital Stock
entitled to vote generally in elections of directors of the continuing or surviving
or successor Person immediately after giving effect to such transaction, so long as
the continuing or surviving or successor Person is a publicly reporting company
whose common stock trades on a U.S. national or regional securities exchange
(including The Nasdaq Stock Market) and the shares of preferred stock are
convertible into such publicly traded common stock of such entity; or




     (B) any consolidation, merger, share exchange, conveyance, transfer, sale,
lease or other disposition of assets or similar transaction solely for the purpose
of changing the Company’s jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding Common Stock, if at all,
solely into common stock, ordinary shares, American Depositary Shares or depositary
receipts or other certificates representing common equity interests of the surviving
entity or a direct or indirect parent of the surviving entity; or




     (C) any consolidation or merger with or into any of the Company’s subsidiaries,
so long as such merger or consolidation is not part of a plan or a series of
transactions designed to or having the effect of merging or consolidating with any
Person that is not a subsidiary of the Company in a transaction that would otherwise
be deemed a Fundamental Change by reason of this clause (iii); or




(iv) a Termination of Trading; or



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     (v) the Company, within the meaning of Title 11 of the U.S. Code or any similar federal
or state law for the relief of debtors, (A) commences a voluntary case, (B) consents to the
entry of an order for relief against it in an involuntary case, (C) consents to the
appointment of a custodian of it for all or substantially all of its property or (D) makes a
general assignment for the benefit of its creditors.



          “Fundamental Change Effective Date” has the meaning set forth in Section 11(b).




          “Fundamental Change Notice” has the meaning set forth in Section 9(b).




          “Fundamental Change Notice Date” has the meaning set forth in Section 9(b).




          “Fundamental Change Repurchase Date” has the meaning set forth in Section 9(a).




          “Fundamental Change Repurchase Notice” has the meaning set forth in Section 9(c).




          “Fundamental Change Repurchase Price” has the meaning set forth in Section 9(a).




          “Holder” means the Person in whose name the shares of the Convertible Preferred Stock
are registered, which may be treated by the Company, Transfer Agent, Registrar, paying agent and
Conversion Agent as the true and lawful owner of the shares of Convertible Preferred Stock for the
purpose of making payment and settling the related conversions and for all other purposes.




          “Independent Director” means a director of the Company who qualifies as an
“independent director” of the Company under (a) New York Stock Exchange Rule 303A.02 (or any
successor provision thereto) or (b) if the Company is not listed on the New York Stock Exchange,
any comparable rule or regulation of the primary stock exchange or quotation system on which the
Common Stock is listed or quoted.




          “Issue Date” means the date on which the Convertible Preferred Stock is originally
issued by the Company.




          “Junior Stock” means the Common Stock and any other class or series of stock of the
Company now existing or hereafter authorized over which Convertible Preferred Stock has preference
or priority in the payment of dividends or in the distribution of assets on any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the Company.




          “Liquidation Preference” means $1,000 per share of Convertible Preferred Stock.




          “Listed Common Equity” has the meaning set forth in Section 11(a).




          “Make-Whole Fundamental Change” has the meaning set forth in Section 11(a).




          “Market Disruption Event” means the occurrence or existence for more than one
half-hour period in the aggregate on any scheduled Trading Day for the Common Stock of any
suspension or limitation imposed on trading (by reason of movements in price exceeding limits
permitted by The New York Stock Exchange or another U.S. national or regional securities exchange
(including The Nasdaq Stock Market) on which the Common Stock is traded or otherwise) in the Common
Stock or in any options, contracts or future contracts relating to the Common Stock, and such
suspension or limitation occurs or exists at any time before 1:00 p.m. (New York City time) on such
day.




          “Maturity Date” means August 1, 2016.




          “Merger” means the transaction pursuant to which the Company acquired Pathmark Stores,
Inc.




          “MGCL” means the Maryland General Corporation Law, codified in Md. Code Ann., Corps. &
Ass’ns, Titles 1-3, as may be in effect from time to time.




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          “Nonpayment” has the meaning set forth in Section 15(d)(i).




          “Nonpayment Preferred Director” has the meaning set forth in Section 15(d)(i).




          “Officer” means the Chief Executive Officer, the Chairman, the Chief Administrative
Officer, any Vice Chairman, the Chief Financial Officer, the Controller, the Chief Accounting
Officer, the Treasurer and Head of Corporate Finance, any Assistant Treasurer, the General Counsel
and Corporate Secretary and any Assistant Secretary of the Company.




          “Officers’ Certificate” means a certificate signed (i) by the Chief Executive Officer,
the Chairman, the Chief Administrative Officer, any Vice Chairman, the Chief Financial Officer, the
Controller or the Chief Accounting Officer and (ii) by the Treasurer and Head of Corporate Finance,
any Assistant Treasurer, the General Counsel and Corporate Secretary or any Assistant Secretary of
the Company, and delivered to the Conversion Agent.




          “Parity Stock” means any class or series of stock of the Company now existing or
hereafter authorized that ranks equally with the Convertible Preferred Stock in the payment of
dividends and in the distribution of assets on any liquidation, dissolution or winding up of the
affairs of the Company.




          “Permitted Holder” means any of the Tengelmann Parties and the Yucaipa Parties.




          “Person” means any individual, firm, corporation, partnership, limited partnership,
company, limited liability company, trust, joint venture, association, unincorporated organization,
syndicate or other entity, or any transnational, Federal, state, local or foreign government, or
any court of competent jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, or any U.S. national or regional securities
exchange (including The Nasdaq Stock Market) on which the Common Stock is traded.




          “Pro Rata Repurchase” means any purchase of all or a portion of the shares of Common
Stock by the Company or any Affiliate pursuant to (A) any tender offer or exchange offer subject to
Section 13(e) or 14(e) of the Exchange Act or Regulation 14E promulgated thereunder or (B) any
other offer available to substantially all holders of Common Stock, in the case of both (A) and
(B), whether for cash, shares of Capital Stock, other securities of the Company, evidences of
indebtedness of the Company or any other Person or any other property (including shares of Capital
Stock, other securities or evidences of indebtedness of a subsidiary), or any combination thereof.




          “Record Date” has the meaning set forth in Section 13(m).




          “Registrar” means the Transfer Agent acting in its capacity as registrar for the
Convertible Preferred Stock, and its successors and assigns.




          “Reorganization Event” has the meaning set forth in Section 14(a).




          “Restricted Common Stock Legend” has the meaning set forth in Section 24(b).




          “Restricted Preferred Stock Legend” has the meaning set forth in Section 24(a).




          “Restricted Stock Legend” has the meaning set forth in Section 24(b).




          “SEC” means the U.S. Securities and Exchange Commission.




          “Securities” has the meaning set forth in Section 24(c)(i).




          “Securities Act” has the meaning set forth in Section 24(c)(i).




          “Senior Secured Notes” means the second-lien senior secured notes issued by the
Company on the Issue Date pursuant to the Senior Secured Notes Indenture.




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          “Senior Secured Notes Indenture” means the Indenture, intended to be dated as of
August 4, 2009, by and among the Company, the corporations listed on the signature pages thereto
and Wilmington Trust Company, as trustee and collateral agent.




          “Senior Stock” means any class or series of stock of the Company now existing or
hereafter authorized which has preference or priority over the Convertible Preferred Stock as to
the payment of dividends or in the distribution of assets on any voluntary or involuntary
liquidation, dissolution or winding up of the Company.




          “Series A Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Series A Holder” means a Holder of Series A Preferred Stock.




          “Series A Preferred Director” has the meaning set forth in Section 15(b)(i).




          “Series A-T Board Representation Entitlement” means zero directors, except, from and
after the Issue Date and to, but not including, the Maturity Date, for so long as the Tengelmann
Percentage Interest is, and has been continuously since the Issue Date, at least 10%, that number
of directors equal to the product of the total number of Company directorships (including
vacancies) at such time and the Tengelmann Percentage Interest at such time (rounded to the nearest
whole number); provided, however, that so long as the Series A-Y Board
Representation Entitlement equals two directors, if the calculation set forth above would result in
a number of directors equal to five, then the Series A-T Board Representation Entitlement shall
mean four directors.




          “Series A-T Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Series A-T Holder” means a Holder of Series A-T Preferred Stock.




          “Series A-Y Board Representation Entitlement” means zero directors, except, from and
after the Issue Date and to, but not including, the Maturity Date, (i) two directors (at least one
of whom would qualify as an Independent Director) so long as the Yucaipa Percentage Interest is,
and has been continuously since the Issue Date, at least 20% or (ii) one director (who would
qualify as an Independent Director) so long as the Yucaipa Percentage Interest is less than 20% and
has been continuously since the Issue Date at least 10%.




          “Series A-Y Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Series A-Y Holder” means a Holder of Series A-Y Preferred Stock.




          “Series B Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Series B-T Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Series B-Y Convertible Preferred Stock” has the meaning set forth in Section 1.




          “Share Price” has the meaning set forth in Section 11(b).




          “Special Voting Parity Stock” has the meaning set forth in Section 15(d)(i).




          “Spin-Off” has the meaning set forth in Section 13(c).




          “Tengelmann” means Tengelmann Warenhandelsgesellschaft, a partnership organized under
the laws of the Federal Republic of Germany.




          “Tengelmann Parties” means (1) Tengelmann, (2) each controlled Affiliate of
Tengelmann, (3) each partner of Tengelmann and the respective members of their immediate families
and (4) any trust, corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding a




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majority or more controlling interest of which consist of any one or more of the Persons
described in the preceding clauses (1), (2) and (3).




          “Tengelmann Percentage Interest” means, as of any date of determination, the
percentage of Voting Power in the Company (determined on the basis of the number of votes entitled
to be cast by all outstanding shares of Voting Stock of the Company, as set forth in the most
recent SEC filing of the Company prior to such date that contained such information) that is
Beneficially Owned by Tengelmann and its Affiliates as of such date; provided,
however, that for purposes of this calculation all determinations shall be made as if the
Conversion Stockholder Approval has been obtained. Notwithstanding the foregoing sentence, to the
extent that any decrease in the Tengelmann Percentage Interest is attributable to issuances from
March 4, 2007 to, but not including, the Issue Date of Equity Securities by the Company (as opposed
to dispositions of Equity Securities of the Company by Tengelmann or its Affiliates), such decrease
will not be taken into account for purposes of determining the Tengelmann Percentage Interest
unless such decrease was attributable to issuance of Equity Securities by the Company (x) in
connection with a Business Combination by the Company or other acquisition by the Company, other
than the Merger, approved by Tengelmann, in accordance with any consent right pursuant to any
stockholder agreement between Tengelmann and Company or (y) on or about December 3, 2007 in
connection with the Merger, as merger consideration, but not in any event by any warrants or
options issued in connection with the Merger.




          “Termination of Trading” means the Common Stock (or other common stock into which the
Convertible Preferred Stock is then convertible) is not listed for trading on a U.S. national or
regional securities exchange (including The Nasdaq Stock Market).




          “Trading Day” means any day on which (i) there is no Market Disruption Event and (ii)
The New York Stock Exchange or, if the Common Stock is not listed on The New York Stock Exchange,
the principal U.S. national securities exchange (including The Nasdaq Stock Market) on which the
Common Stock is listed, admitted for trading or quoted, is open for trading or, if the Common Stock
is not so listed, admitted for trading or quoted, any Business Day; provided,
however, that a “Trading Day” only includes those days that have a scheduled closing time
of 4:00 p.m. (New York City time) or the then-standard closing time for regular trading on the
relevant exchange or trading system.




          “Transfer Agent” means American Stock Transfer & Trust Company acting as Transfer
Agent, Registrar, paying agent and Conversion Agent for the Convertible Preferred Stock, and its
successors and assigns.




          “Voting Power” means the ability to vote or to control, directly or indirectly, by
proxy or otherwise, the vote of any Voting Stock at the time such determination is made;
provided that a Person will not be deemed to have Voting Power as a result of an agreement,
arrangement or understanding to vote such Voting Stock if such agreement, arrangement or
understanding (i) arises solely from a revocable proxy or consent given in response to a public
proxy or consent solicitation made pursuant to the applicable rules and regulations under the
Exchange Act and (ii) is not also then reportable by such Person on Schedule 13D under the Exchange
Act (or any comparable or successor report). For purposes of determining the percentage of Voting
Power of any class or series (or classes or series) Beneficially Owned by any Person, any Voting
Stock not outstanding which is issuable pursuant to conversion, exchange or other rights, warrants,
options or similar securities will not be deemed to be outstanding for the purpose of computing the
Voting Power of any Person.




          “Voting Stock”, of any Person, means securities having the right to vote generally in
any election of directors or comparable governing Persons of such Person.




          “Yucaipa” means Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance
Fund I, LP, Yucaipa American Alliance Fund (Parallel) Fund I, LP, Yucaipa American Alliance Fund
II, LP, and Yucaipa American Alliance (Parallel) Fund II, LP.




          “Yucaipa Parties” means (1) Yucaipa, (2) each controlled Affiliate of Yucaipa, The
Yucaipa Companies, LLC or Ronald W. Burkle, (3) each partner of Yucaipa, any controlled Affiliate
of Yucaipa, The Yucaipa Companies, LLC or Ronald W. Burkle and the respective members of their
immediate families and (4) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons




9









 




beneficially holding a majority or more controlling interest of which consist of any one or
more Persons described in the preceding clauses (1), (2) and (3).




          “Yucaipa Percentage Interest” means, as of any date of determination, the percentage
of Voting Power in the Company (determined on the basis of the number of votes entitled to be cast
by all outstanding shares of Voting Stock of the Company, as set forth in the most recent SEC
filing of the Company prior to such date that contained such information) that is Beneficially
Owned by Yucaipa and its controlled Affiliates as of such date (including any Equity Securities
owned prior to the Issue Date); provided, however, that for purposes of this
calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been
obtained and (y) notwithstanding the definition of Beneficial Ownership or Voting Power, all
determinations shall be made as if Yucaipa beneficially owns any and all Voting Stock or Equity
Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement
that hedges the economic consequences of ownership of any Voting Stock or Equity Securities.




Section 4. Dividends.




          (a) Rate. Holders shall be entitled to receive, if, as and when authorized by the Board of
Directors or any duly authorized committee thereof and declared by the Company, but only out of
assets legally available therefor, cumulative dividends accruing at the Applicable Rate (subject to
increase pursuant to clause (d) below) per share per annum on the Liquidation Preference for the
applicable Dividend Period. For any Dividend Period, such dividends shall be payable in cash;
provided that, if and only if, either (i) the payment in full in cash of such dividends
would be prohibited by the terms of the ABL Credit Agreement or (ii) insufficient assets are
legally available to the Company for the payment in full of such cash dividends, such dividends
shall instead be paid in additional duly authorized, validly issued and fully paid and
nonassessable shares of the series of Convertible Preferred Stock in respect of which such dividend
is being paid (such election, the “Convertible Preferred Stock PIK Dividend Provision”);
provided further that if the Company pays such dividend in shares of Convertible
Preferred Stock, no fractional shares shall be issued in payment of any such dividend, and the
Company shall pay, at its option, in lieu of any fraction of a share that would otherwise be
issuable in payment of such dividend, (x) cash or (y) an additional whole share. The Company must
provide Holders written notice, at least five Business Days prior to the Dividend Record Date for
such dividend, of any exercise of the Convertible Preferred Stock PIK Dividend Provision. Dividends
shall be payable quarterly in arrears on each of March 15, June 15, September 15 and December 15 of
each year, commencing on September 15, 2009, for so long as any Convertible Preferred Stock is
outstanding; provided, however, that if any such day is not a Business Day, then
payment of any dividend otherwise payable on that date will be made on the next succeeding day that
is a Business Day, unless that day falls in the next calendar year, in which case payment of such
dividend will occur on the immediately preceding Business Day (in either case, without any interest
or other payment in respect of such delay) (each such day on which dividends are payable, a
“Dividend Payment Date”). Accumulated and unpaid dividends for any prior Dividend Period
may be paid at any time. The period from and including August 4, 2009 or any Dividend Payment Date
to, but excluding, the next Dividend Payment Date is a “Dividend Period.” The record date
for payment of dividends on the Convertible Preferred Stock will be the fifteenth day of the
calendar month immediately preceding the month during which the Dividend Payment Date falls or such
other record date fixed by the Board of Directors or any duly authorized committee thereof that is
not more than 30 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend
Record Date”). Any such day that is a Dividend Record Date will be a Dividend Record Date
whether or not such day is a Business Day. The amount of the dividend per share of Convertible
Preferred Stock payable will be computed on the basis of a 360-day year of twelve 30-day months.




          (b) Calculation of Non-Cash Dividends. In the event that the Company exercises the
Convertible Preferred Stock PIK Dividend Provision and pays any dividend in shares of Convertible
Preferred Stock, the amount of the dividend per share of Convertible Preferred Stock so payable
shall be valued for such purposes at the Liquidation Preference of the Convertible Preferred Stock.
The number of additional shares of Convertible Preferred Stock issuable to Holders pursuant to such
Convertible Preferred Stock PIK Dividend Provision will be the number obtained by dividing (a) the
amount of the dividend per share of Convertible Preferred Stock payable at the Applicable Rate
(subject to increase pursuant to clause (d) below) on such applicable Dividend Payment Date by (b)
the Liquidation Preference.




10









 





          (c) Accrual. Dividends on the Convertible Preferred Stock shall accrue whether or not the
Company has earnings or profits, whether or not there are funds legally available for the payment
of such dividends and whether or not dividends are declared. Dividends will accumulate to the
extent they are not paid on the Dividend Payment Date for the Dividend Period to which they relate.




          (d) Dividend Step-Up.





     (i) If and whenever dividends on the Convertible Preferred Stock have not been paid in
full (in cash or pursuant to the Convertible Preferred Stock PIK Dividend Provision),
whether or not declared, in respect of any Dividend Period, then the Applicable Rate in
respect of the dividend payable on any Dividend Payment Date shall be increased by an
additional 2.00% per annum with respect to such Dividend Period. The increase in the
Applicable Rate set forth herein shall be in addition to, and shall not be considered a
substitution for, any remedies available for Nonpayment specified in Section 15(b).




     (ii) If the Company fails to obtain the Conversion Stockholder Approval on or prior to
the six-month anniversary of the Issue Date (a “Conversion Stockholder Approval
Default”), the Applicable Rate in respect of the dividend payable on any Dividend
Payment Date shall be increased by an additional 2.00% per annum from the date of such
Conversion Stockholder Approval Default through, but excluding, the date on which such
Conversion Stockholder Approval Default shall have been cured, and until such cure shall
further increase by an additional 1.00% per annum at the end of each six-month period
thereafter.



          (e) Priority of Dividends. So long as any share of Convertible Preferred Stock remains
outstanding and subject to the Company’s compliance with the provisions of Section 13, unless as to
a Dividend Payment Date, full cumulative dividends on all outstanding shares of the Convertible
Preferred Stock for all past Dividend Periods have been or are contemporaneously declared and paid
and for the then current Dividend Period have been or are contemporaneously declared and paid or
declared and a sum sufficient for the payment of those dividends has been set aside, the Company
will not, and will cause its subsidiaries not to, during the next succeeding Dividend Period that
commences on such Dividend Payment Date, declare or pay any dividend on, set apart any sum for the
payment of dividends on, make any distributions relating to, or redeem, purchase, acquire or make a
liquidation payment relating to, any Junior Stock or Parity Stock, or make any guarantee payment
with respect thereto.




          The foregoing restriction, however, will not apply to any stock dividends paid by the Company
with respect to Junior Stock where the dividend stock is the same stock as that on which the
dividend is being paid.




          For so long as any share of Convertible Preferred Stock remains outstanding, if dividends are
not declared and paid in full upon the shares of Convertible Preferred Stock and any Parity Stock,
all dividends declared upon shares of Convertible Preferred Stock and any Parity Stock will be
declared on a proportional basis so that the amount of dividends declared per share will bear to
each other the same ratio that accrued dividends for the then-current Dividend Period per share of
Convertible Preferred Stock and accrued dividends for the then-current Dividend Period per share of
any Parity Stock (including, in the case of any such Parity Stock that bears cumulative dividends,
all accumulated and unpaid dividends for past Dividend Periods with respect to both the Convertible
Preferred Stock and such Parity Stock) bear to each other.




          Subject to the foregoing, and not otherwise, such dividends payable in cash, stock or
otherwise, as may be determined by the Board of Directors or any duly authorized committee thereof,
may be declared and paid on any Junior Stock and Parity Stock from time to time out of any assets
legally available for such payment, and unless otherwise specifically provided, Holders will not be
entitled to participate in those dividends.




          (f) Conversion Following A Record Date. If a Conversion Date for any shares of Convertible
Preferred Stock is prior to the close of business on a Dividend Record Date for any declared
dividend for the then-current Dividend Period, the Holder of such shares will not be entitled to
any such dividend. If the Conversion Date for any shares of Convertible Preferred Stock is after
the close of business on a Dividend Record Date for any declared dividend for the then-current
Dividend Period, but prior to the corresponding Dividend Payment Date, the Holder of such shares
shall be entitled to receive such dividend, notwithstanding the conversion of such shares prior to
the Dividend Payment Date. However, such shares, upon surrender for conversion, must be accompanied
by (i)




11









 




cash or (ii) additional shares of Convertible Preferred Stock with an aggregate Liquidation
Preference equal to the dividend on such shares; provided that no such payment need be made
if a conversion is made in connection with a Make-Whole Fundamental Change in accordance with the
terms hereof.




          (g) Successive Adjustments. After any adjustment to the Applicable Rate under this Section 4
has been made, any subsequent event requiring an adjustment under this Section 4 shall cause an
adjustment to the Applicable Rate as so adjusted. The increase in the Applicable Rate set forth in
this Section 4 shall be in addition to, and shall not be considered a substitution for, any
remedies set forth elsewhere in these Articles Supplementary.




Section 5. Liquidation Rights.




          (a) Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, Holders shall be entitled, out of assets legally
available therefor, before any distribution or payment out of the assets of the Company may be made
to or set aside for the holders of any Junior Stock and subject to the rights of the holders of any
class or series of securities ranking senior to or on parity with Convertible Preferred Stock upon
liquidation and the rights of the Company’s creditors, to receive in full a liquidating
distribution equal to the greater of (i) the amount of the Liquidation Preference, plus any
accumulated and unpaid and accrued and unpaid dividends thereon up to, but excluding, the date of
the liquidation, dissolution or winding up, and (ii) in lieu of any payment pursuant to clause (i)
above, the amount that would be payable in such liquidation, dissolution or winding up with respect
to the shares of Common Stock issuable to such Holders upon the conversion of the shares of
Convertible Preferred Stock held by such Holders had such shares of Convertible Preferred Stock
been converted into Common Stock immediately prior to such liquidation, dissolution or winding up;
provided, that for purposes of this calculation such determination shall be made as if the
Conversion Stockholder Approval has been obtained. Holders shall not be entitled to any further
payments in the event of any such voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company other than what is expressly provided for in this Section 5.




          (b) Partial Payment. If the assets of the Company are not sufficient to pay in full the
Liquidation Preference of the Convertible Preferred Stock, plus any accumulated and unpaid and
accrued and unpaid dividends thereon, and the liquidation preference of any Parity Stock, plus any
accumulated and unpaid and accrued and unpaid dividends thereon, any amounts paid to the Holders
and to the holders of all Parity Stock shall be pro rata in accordance with the respective
aggregate liquidating distributions to which they would otherwise be entitled.




          (c) Residual Distributions. If the respective aggregate liquidating distributions to which
all Holders and all holders of any Parity Stock are entitled have been paid in full, the holders of
Junior Stock shall be entitled to receive all remaining assets of the Company according to their
respective rights and preferences.




          (d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 5,
the sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property and assets of the Company shall not be
deemed a voluntary or involuntary dissolution, liquidation or winding up of the affairs of the
Company, nor shall the merger, consolidation or any other business combination transaction of the
Company into or with any other corporation or person or the merger, consolidation or any other
business combination transaction of any other corporation or person into or with the Company be
deemed to be a voluntary or involuntary dissolution, liquidation or winding up of the affairs of
the Company.




          (e) Liquidation Preference Opt-Out. In determining whether a distribution (whether by
voluntary or involuntary liquidation) by dividend, redemption or other acquisition of shares of
stock of the Company or otherwise, is permitted under the MGCL, no effect shall be given to amounts
that would be needed if the Company would be dissolved at the time of the distribution to satisfy
the preferential rights upon dissolution of holders of shares of stock of the Company whose
preferential rights upon dissolution are superior to those receiving the distribution.




12









 





Section 6. Redemption.




          Subject to the repurchase rights of the Holders set forth herein, the Convertible Preferred
Stock will not be redeemable by the Company on any date prior to the Maturity Date.




Section 7. Right of the Holders to Convert.




          Except as otherwise specified herein, each Holder shall have the right, at such Holder’s
option, after the first anniversary of the Issue Date (or earlier if in connection with a
Fundamental Change) to convert all or any portion of such Holder’s Convertible Preferred Stock into
duly authorized, validly issued and fully paid and nonassessable shares of Common Stock at the
Conversion Rate per share of Convertible Preferred Stock (subject to the conversion procedures of
Section 8), plus, in lieu of any fractional share, (x) cash or (y) an additional whole share of
Common Stock, at the option of the Company; provided, however, that at any time
prior to the receipt of the Conversion Stockholder Approval, (a) the aggregate amount of Series A-Y
Convertible Preferred Stock and Series B-Y Convertible Preferred Stock will not be exercisable into
more than 18.99% of the Common Stock outstanding prior to the issuance of the Convertible Preferred
Stock and (b) the aggregate amount of Series A-T Convertible Preferred Stock and Series B-T
Convertible Preferred Stock will not be exercisable into more than 1.00% of the Common Stock
outstanding prior to the issuance of the Convertible Preferred Stock.




Section 8. Conversion Procedures.




          (a) Conversion Date. Effective immediately prior to the close of business on any applicable
Conversion Date, dividends shall no longer be declared on any such converted shares of Convertible
Preferred Stock and such shares of Convertible Preferred Stock shall cease to be outstanding, in
each case, subject to the right of Holders to receive any declared and unpaid dividends on such
shares and any other payments to which they are otherwise entitled pursuant to the terms hereof.




          (b) Rights Prior to Conversion. No allowance or adjustment, except pursuant to Section 13,
shall be made in respect of dividends payable to holders of the Common Stock of record as of any
date prior to the close of business on any applicable Conversion Date. Prior to the close of
business on any applicable Conversion Date, shares of Common Stock issuable upon conversion of, or
other securities issuable upon conversion of, any shares of Convertible Preferred Stock shall not
be deemed outstanding for any purpose, and Holders shall have no rights with respect to the Common
Stock or other securities issuable upon conversion (including voting rights, rights to respond to
tender offers for the Common Stock or other securities issuable upon conversion and rights to
receive any dividends or other distributions on the Common Stock or other securities issuable upon
conversion) by virtue of holding shares of Convertible Preferred Stock, except pursuant to
Section 15 hereof.




          (c) Record Holder as of Conversion Date. The Person or Persons entitled to receive the Common
Stock and/or cash, securities or other property issuable upon conversion of Convertible Preferred
Stock shall be treated for all purposes as the record holder(s) of such shares of Common Stock
and/or securities as of the close of business on any applicable Conversion Date. In the event that
a Holder shall not by written notice designate the name in which shares of Common Stock and/or
cash, securities or other property to be issued or paid upon conversion of shares of Convertible
Preferred Stock should be registered or paid or the manner in which such shares should be
delivered, the Company shall be entitled to register and deliver such shares, and make such
payment, in the name of the Holder and in the manner shown on the records of the Company.




          (d) Conversion Procedure. On the date of any conversion, if a Holder’s interest is in
certificated form, a Holder must do each of the following in order to convert:





     (i) complete and manually sign the conversion notice provided by the Conversion Agent
(a “Conversion Notice”), or a facsimile of the conversion notice, and deliver such
irrevocable notice to the Conversion Agent;




     (ii) surrender the shares of Convertible Preferred Stock to the Conversion Agent;



13









 






     (iii) if required, furnish appropriate endorsements and transfer documents;




     (iv) if required, pay any stock transfer, documentary, stamp or similar taxes not
payable by the Company pursuant to Section 25; and




     (v) if required pursuant to Section 4(f), pay funds equal to any declared and unpaid
dividend payable on the next Dividend Payment Date to which such Holder is entitled.



          The date on which a Holder complies with the procedures in this clause (d) is the
“Conversion Date.” The Conversion Agent shall, on a Holder’s behalf, convert the
Convertible Preferred Stock into shares of Common Stock, in accordance with the terms of the
Conversion Notice.




Section 9. Repurchase of Convertible Preferred Stock Upon a Fundamental Change.




          (a) Fundamental Change Repurchase. If a Fundamental Change occurs, at any time after December
3, 2012 (or, if the ABL Credit Agreement has been refinanced, such earlier date as permitted under
the terms of the refinanced indebtedness) and, so long as any Senior Secured Notes are outstanding,
after the completion of any Change of Control Offer (as defined in the Senior Secured Notes
Indenture) required under the Senior Secured Notes as a result of the event that constitutes such
Fundamental Change, the Convertible Preferred Stock shall be repurchased by the Company in whole or
in part, out of funds legally available therefor, at the option of the Holder thereof, in cash at
101% of the Liquidation Preference of the Convertible Preferred Stock to be repurchased, plus any
accumulated and unpaid and accrued and unpaid dividends thereon up to, but not including, such
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). The
Fundamental Change Repurchase Date shall be a date that is no earlier than 20 Business Days and no
later than 30 Business Days after the date of the Fundamental Change Notice delivered by the
Company (the “Fundamental Change Repurchase Date”). If the Fundamental Change Repurchase
Date is on a date that is after a Dividend Record Date and on or prior to the corresponding
Dividend Payment Date, the Company will pay the related dividend to the person to whom the
Fundamental Change Repurchase Price is payable (and only to the extent that such dividend was not
already paid as part of the Fundamental Change Repurchase Price).




          (b) Notices. On or before the twentieth day prior to the date on which the Company
anticipates consummating a Fundamental Change (or, if later, promptly after the Company discovers a
Fundamental Change will occur), a written notice shall be sent by or on behalf of the Company to
the Holders by first-class mail setting forth the date on which it is anticipated that such
Fundamental Change will occur. Within 15 days after the occurrence of a Fundamental Change, the
Company shall mail a written notice of the Fundamental Change (the “Fundamental Change
Notice”) by first-class mail to each Holder (the date of such mailing, the “Fundamental
Change Notice Date”); provided that, if such Fundamental Change is also subject to the
provisions of Section 11, any Fundamental Change Notice required to be delivered to the Holders
pursuant to this Section 9 shall be mailed to each Holder by first class mail on the Fundamental
Change Effective Date. The Fundamental Change Notice shall include a form of Fundamental Change
Repurchase Notice to be completed by the Holder and shall state:





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




     (ii) the date by which the Fundamental Change Repurchase Notice pursuant to
Section 9(c) must be given;




     (iii) the Fundamental Change Repurchase Date;




     (iv) the Fundamental Change Repurchase Price;




     (v) the name and address of (A) the bank or trust company with which funds necessary
for the redemption contemplated by Section 9(a) will be deposited and (B) the paying agent
and the Transfer Agent;




     (vi) the Conversion Rate and any adjustments thereto;



14









 






     (vii) that the Convertible Preferred Stock as to which a Fundamental Change Repurchase
Notice has been given may instead be converted if such Convertible Preferred Stock are
otherwise convertible pursuant to Section 7 only if the Fundamental Change Repurchase Notice
has been withdrawn in accordance with the terms of these Articles Supplementary;




     (viii) that the Convertible Preferred Stock must be surrendered to the paying agent to
collect the Fundamental Change Repurchase Price;




     (ix) briefly, the procedures the Holder must follow to exercise rights under this
Section 9(b);




     (x) the procedures for withdrawing a Fundamental Change Repurchase Notice; and




     (xi) that, unless the Company defaults in making payment of such Fundamental Change
Repurchase Price, dividends, if any, on the Convertible Preferred Stock surrendered for
repurchase by the Company will cease to accrue on and after the Fundamental Change
Repurchase Date.



          (c) Fundamental Change Repurchase Procedures. A Holder may exercise its rights specified in
Section 9(a) upon delivery of a written notice of repurchase (a “Fundamental Change Repurchase
Notice”) to the paying agent at any time on or prior to the close of business on the second
Business Day prior to the Fundamental Change Repurchase Date, stating:





     (i) the certificate number of the Convertible Preferred Stock which the Holder will
deliver to be repurchased;




     (ii) the aggregate liquidation preference of the Convertible Preferred Stock, or
portion thereof, which the Holder will deliver to be repurchased; and




     (iii) that such Convertible Preferred Stock shall be repurchased pursuant to the terms
and conditions specified in the applicable provisions of such Convertible Preferred Stock
and these Articles Supplementary.



          The delivery of such Convertible Preferred Stock to the paying agent with the Fundamental
Change Repurchase Notice at the offices of the paying agent shall be a condition to the receipt by
the Holder of the Fundamental Change Repurchase Price therefor; provided, however,
that such Fundamental Change Repurchase Price shall be so paid pursuant to this Section 9 only if
the Convertible Preferred Stock so delivered to the paying agent shall conform in all material
respects to the description thereof set forth in the related Fundamental Change Repurchase Notice.




          (d) Termination of Rights. Any repurchase by the Company contemplated pursuant to the
provisions of this Section 9 shall be consummated by the delivery of the consideration to be
received by the Holder on the Business Day following the later of the Fundamental Change Repurchase
Date or the satisfaction of the foregoing conditions to such repurchase to be fulfilled by the
Holder hereunder. If the bank or trust company meeting the requirements set forth in Section 9(g)
holds money sufficient to pay the Fundamental Change Repurchase Price of the Convertible Preferred
Stock which Holders have elected to require the Company to repurchase on such Business Day in
accordance with the terms of these Articles Supplementary, then, from and including the Fundamental
Change Repurchase Date, such Convertible Preferred Stock shall cease to be outstanding and
dividends on such Convertible Preferred Stock shall cease to accrue and all other rights of the
Holders shall terminate, other than the right to receive the Fundamental Change Repurchase Price
upon satisfaction of the foregoing conditions.




          (e) Effects of Fundamental Change Repurchase Notice. Upon receipt by the paying agent of the
Fundamental Change Repurchase Notice specified in Section 9(c), the Holder of the Convertible
Preferred Stock in respect of which such Fundamental Change Repurchase Notice was given shall
(unless such Fundamental Change Repurchase Notice is withdrawn as specified in the following
paragraph) thereafter be entitled to receive solely the Fundamental Change Repurchase Price with
respect to such Convertible Preferred Stock. The Company shall cause




15









 




such Fundamental Change Repurchase Price to be paid to such Holder promptly following the
later of (i) the Business Day following the Fundamental Change Repurchase Date, as the case may be,
with respect to such Convertible Preferred Stock (provided the conditions in Section 9(c) have been
satisfied) and (ii) the time of delivery of such Convertible Preferred Stock to the paying agent by
the Holder thereof in the manner required by Section 9(c). Convertible Preferred Stock in respect
of which a Fundamental Change Repurchase Notice has been given by the Holder thereof may not be
converted pursuant to Section 7 hereof on or after the date of the delivery of such Fundamental
Change Repurchase Notice unless such Fundamental Change Repurchase Notice has first been validly
withdrawn as specified in the following paragraph.




          (f) Withdrawal. A Fundamental Change Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the paying agent in accordance with the Fundamental
Change Repurchase Notice at any time prior to the close of business on the second Business Day
prior to the Fundamental Change Repurchase Date specifying:





     (i) the certificate number of the Convertible Preferred Stock in respect of which such
notice of withdrawal is being submitted;




     (ii) the aggregate liquidation preference of the Convertible Preferred Stock, or
portion thereof, with respect to which such notice of withdrawal is being submitted; and




     (iii) the aggregate liquidation preference, if any, of such Convertible Preferred Stock
which remains subject to the original Fundamental Change Repurchase Notice and which has
been or will be delivered for repurchase by the Holder;


provided, however, that such withdrawal shall be effective only if the description
of the Convertible Preferred Stock set forth in such withdrawal notice conforms in all material
respects to the description thereof set forth in the related Fundamental Change Repurchase Notice.




          (g) Deposit of Fundamental Change Repurchase Price. Prior to 10:00 a.m. New York City time on
the Business Day following the later of the Fundamental Change Repurchase Date and the Holder’s
satisfaction of all applicable conditions specified in Section 9, the Company shall deposit with a
bank or trust company selected by the Board of Directors doing business in the Borough of
Manhattan, the City of New York, and having a capital and surplus of at least $500 million, an
amount of cash (in immediately available funds if deposited on such Business Day), sufficient to
pay the aggregate Fundamental Change Repurchase Price of all the Convertible Preferred Stock or
portions thereof which are to be repurchased in respect of such Fundamental Change Repurchase Date.




          (h) Convertible Preferred Stock Repurchased in Part. Any Convertible Preferred Stock which is
to be repurchased only in part shall be surrendered at the office of the paying agent (with, if the
Company or the Transfer Agent so requires, due endorsement by, or a written instrument of transfer
in form reasonably satisfactory to the Company and the Transfer Agent duly executed by, the Holder
thereof or such Holder’s attorney duly authorized in writing) and the Company shall execute and
shall authenticate and deliver to the Holder of such Convertible Preferred Stock, without service
charge, new Convertible Preferred Stock, of any authorized denomination as requested by such Holder
in aggregate liquidation preference equal to, and in exchange for, the portion of the Liquidation
Preference of the Convertible Preferred Stock so surrendered which is not repurchased.




Section 10. Reserved.




Section 11. Make-Whole.




          (a) Make-Whole Fundamental Change Conversion. If, after the Convertible Preferred Stock is
issued, the Fundamental Change Effective Date of a Fundamental Change pursuant to paragraph (i)
(without giving effect to the proviso at the end of paragraph (i) in the definition of “Fundamental
Change”), (iii) (without giving effect to clause (A) under paragraph (iii) in the definition of
“Fundamental Change”) or (iv) of the definition of “Fundamental Change” occurs (regardless of
whether the Holder has the right to require the Company to repurchase




16









 




the Convertible Preferred Stock) and 10% or more of the consideration (excluding in
calculating such percentage cash payments for fractional shares and cash payments made pursuant to
dissenters’ appraisal rights) for the Common Stock in the transaction consists of consideration
other than common stock that is traded or scheduled to be traded immediately following such
transaction on a U.S. national or regional securities exchange (including The Nasdaq Stock Market)
(collectively, “Listed Common Equity”) (a “Make-Whole Fundamental Change”) and the
Convertible Preferred Stock is surrendered for conversion in accordance with the procedures set
forth in Section 8(d) in connection with such Fundamental Change transaction, the Company will
increase the Conversion Rate by a number of additional shares of Common Stock (the “Additional
Shares”) determined pursuant to this Section 11.




          A conversion of the Convertible Preferred Stock will be deemed for these purposes to be “in
connection with” a Fundamental Change transaction if the related Conversion Notice is received by
the Conversion Agent during the period from and including the Fundamental Change Effective Date
until and including the 30th Business Day following such Fundamental Change Effective Date.




          (b) Number of Additional Shares. The number of Additional Shares by which the Conversion Rate
shall be increased shall be determined by reference to the table below, with reference to the date
such Fundamental Change transaction becomes effective (the “Fundamental Change Effective
Date”) and the price (the “Share Price”) paid per share of Common Stock in such
Fundamental Change transaction. If the holders of Common Stock receive only cash in the Fundamental
Change transaction, the Share Price shall be the cash amount paid per share of Common Stock.
Otherwise, the Share Price shall be the average of the Closing Prices of the Common Stock on the
five Trading Days immediately prior to but not including the Fundamental Change Effective Date.




          As of any date upon which the Conversion Rate is adjusted pursuant to Section 13, the Share
Prices set forth in the first row of the table below shall be adjusted by the Company such that the
adjusted Share Prices shall equal the Share Prices applicable immediately prior to such adjustment
multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such
adjustment and the denominator of which is the Conversion Rate as so adjusted pursuant to
Section 13. If the Share Price is between two Share Prices in the table, or the Fundamental Change
Effective Date is between two Effective Dates in the table, the number of Additional Shares will be
determined by straight-line interpolation between the number of Additional Shares set forth for the
higher and lower Share Prices and the two Effective Dates, as applicable, based on a 365-day year.
If the Share Price is in excess of $40.00 per share (subject to adjustment as set forth herein), or
if the Share Price is less than $4.00 per share (subject to adjustment as set forth herein), no
Additional Shares will be added to the Conversion Rate.




Number of Additional Shares

Share Price




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Effective Date
	 	 	$4.00	 	$4.50	 	$5.00	 	$6.00	 	$8.00	 	$10.00	 	$15.00	 	$20.00	 	$30.00	 	$40.00
	4-Aug-09
	 	 	 	50.0000	 	 	 	46.0003	 	 	 	41.5267	 	 	 	34.8385	 	 	 	26.1594	 	 	 	21.1836	 	 	 	14.3705	 	 	 	10.9497	 	 	 	7.2809	 	 	 	5.6892	 
	4-Aug-10
	 	 	 	50.0000	 	 	 	43.9440	 	 	 	39.6511	 	 	 	33.0145	 	 	 	25.0260	 	 	 	20.2654	 	 	 	13.5942	 	 	 	10.2582	 	 	 	7.0385	 	 	 	5.1628	 
	4-Aug-11
	 	 	 	50.0000	 	 	 	41.1360	 	 	 	37.1115	 	 	 	30.9136	 	 	 	23.4248	 	 	 	18.7203	 	 	 	12.7812	 	 	 	9.5478	 	 	 	6.4523	 	 	 	5.0291	 
	4-Aug-12
	 	 	 	50.0000	 	 	 	37.2409	 	 	 	33.5946	 	 	 	27.9166	 	 	 	21.1402	 	 	 	16.8786	 	 	 	11.3230	 	 	 	8.6454	 	 	 	5.7261	 	 	 	4.4736	 
	4-Aug-13
	 	 	 	50.0000	 	 	 	31.9489	 	 	 	28.7922	 	 	 	24.0022	 	 	 	18.0230	 	 	 	14.3540	 	 	 	9.6154	 	 	 	7.3421	 	 	 	4.9131	 	 	 	3.8419	 
	4-Aug-14
	 	 	 	50.0000	 	 	 	24.8885	 	 	 	22.1294	 	 	 	18.3662	 	 	 	13.7871	 	 	 	11.0362	 	 	 	7.3390	 	 	 	5.5413	 	 	 	3.6946	 	 	 	2.7682	 
	4-Aug-15
	 	 	 	50.0000	 	 	 	22.2222	 	 	 	13.4875	 	 	 	10.6574	 	 	 	7.9701	 	 	 	6.3473	 	 	 	4.2364	 	 	 	3.1793	 	 	 	2.1144	 	 	 	1.5746	 
	1-Aug-16
	 	 	 	50.0000	 	 	 	22.2222	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 






          Notwithstanding the foregoing, in no event will the number of Additional Shares of Common
Stock by which the Conversion Rate is adjusted pursuant to this Section 11 exceed 50.0000 shares,
subject to adjustment in the same manner as the Conversion Rate pursuant to Section 13.




17









 





          (c) Initial Make-Whole Fundamental Change Notice. On or before the twentieth day prior to the
date on which the Company anticipates consummating a Make-Whole Fundamental Change (or, if later,
promptly after the Company discovers a Make-Whole Fundamental Change will occur), a written notice
shall be sent by or on behalf of the Company to the Holders by first-class mail. Such notice shall
contain:





     (i) the date on which the Make-Whole Fundamental Change is anticipated to be effected;
and




     (ii) the date, which shall be 30 Business Days after the anticipated Fundamental Change
Effective Date, by which the conversion of the Convertible Preferred Stock will be deemed
for purposes of this Section 11 to be in connection with a Fundamental Change transaction.



          (d) Second Make-Whole Acquisition Notice. On the Fundamental Change Effective Date, another
written notice shall be sent by or on behalf of the Company to the Holders by first-class mail.
Such notice shall contain:





     (i) the date that shall be 30 Business Days after the Fundamental Change Effective
Date;




     (ii) the number of Additional Shares and, if applicable, the Fundamental Change
Repurchase Price;




     (iii) the amount of cash, securities and other consideration payable per share of
Common Stock and Convertible Preferred Stock in connection with such Fundamental Change; and




     (iv) the instructions a Holder must follow to convert its Convertible Preferred Stock
in connection with such Fundamental Change transaction or to exercise rights under
Section 9(b), if applicable.



Section 12. Mandatory Redemption.




          (a) Mandatory Redemption. On the Maturity Date the Company shall redeem all of the
outstanding Convertible Preferred Stock at 100% of the Liquidation Preference, plus all accumulated
and unpaid and accrued and unpaid dividends thereon up to, but not including, the Maturity Date,
out of funds legally available for such purposes. The Company shall take all actions required or
permitted under the MGCL to permit such redemption of the Convertible Preferred Stock.




          (b) Notice. At least 30 days prior to the Maturity Date, the Company shall mail a written
notice by first-class mail to each Holder, which notice shall state:





     (i) the Maturity Date;




     (ii) the name and address of (A) the bank or trust company with which funds necessary
for the redemption contemplated by Section 12(a) will be deposited and (B) the Transfer
Agent;




     (iii) the redemption price for the Convertible Preferred Stock;




     (iv) that the Convertible Preferred Stock must be surrendered to the Transfer Agent to
collect the redemption price; and




     (v) briefly, any procedures the Holder must follow to exercise rights under this
Section 12.



          (c) Deposit of Funds. If on or before the Maturity Date all funds necessary for the
redemption contemplated by Section 12(a) shall have been deposited with a bank or trust company
selected by the Board of Directors doing business in the Borough of Manhattan, the City of New
York, and having a capital and surplus of at least $500 million, for the purpose of redeeming the
Convertible Preferred Stock, then, from and after the Maturity Date, dividends on the shares of the
Convertible Preferred Stock shall cease to accrue and accumulate, and the shares of Convertible
Preferred Stock shall no longer be deemed to be outstanding and shall not have the status of




18









 




shares of Convertible Preferred Stock, and all rights of the Holders thereof as stockholders
of the Company (except the right to receive from the Company the redemption price) shall cease.
Upon surrender of the certificates for shares so redeemed (properly endorsed or assigned for
transfer, if the Company shall so require), such shares shall be redeemed by the Company at the
redemption price.




          Any deposit by the Company of funds with a bank or trust company for the purpose of redeeming
Convertible Preferred Stock shall be irrevocable, except that any balance of money so deposited and
unclaimed by any Holders of shares of Convertible Preferred Stock entitled thereto at the
expiration of two years from the Maturity Date shall be repaid, together with any interest or other
earnings earned thereon, to the Company (or its successor), and after any such repayment, the
Holders shall look only to the Company (or its successor) for payment without interest or other
earnings.




Section 13. Anti-Dilution Adjustments.




          (a) Adjustment for Change in Capital Stock. If, after the Convertible Preferred Stock is
issued, the Company:





     (i) pays a dividend or makes another distribution payable in shares of Common Stock on
the Common Stock;




     (ii) subdivides the outstanding shares of Common Stock into a greater number of shares;
or




     (iii) combines the outstanding shares of Common Stock into a smaller number of shares;


then the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such dividend or
distribution, or the effective date of such share split or share combination, shall be adjusted by
the Company based on the following formula:









     where



     CR0 = the Conversion Rate in effect immediately prior to such Ex-Dividend Date, or
effective date;



     CR1 = the new Conversion Rate in effect immediately after such Ex-Dividend Date, or
effective date;



     OS0 = the number of shares of Common Stock outstanding immediately prior to such
Ex-Dividend Date, or effective date; and



     OS1 = the number of shares of Common Stock outstanding immediately prior to such
Ex-Dividend Date, or effective date but after giving effect to such dividend, distribution, share
split or share combination.



     If any dividend or distribution described in this Section 13(a) is declared but not so paid or
made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in
effect if such dividend or distribution had not been declared.



          (b) Adjustment for Rights Issue. If, after the Convertible Preferred Stock is issued, the
Company distributes to all, or substantially all, holders of shares of Common Stock any rights,
warrants or options entitling them, for a period of not more than 60 days after the date of
issuance thereof, to subscribe for or to purchase shares of Common Stock at an exercise price per
share of Common Stock less than the average of the Closing Prices of the Common Stock for each
Trading Day in the 10-consecutive Trading Day period ending on the Trading Day immediately
preceding the time of announcement of such issuance (other than any rights, warrants or




19









 




options that by their terms will also be issued to Holders upon conversion of their
Convertible Preferred Stock into Common Stock), then the Conversion Rate in effect immediately
prior to the Ex-Dividend Date for such distribution shall be adjusted by the Company in accordance
with the following formula:









     where



     CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for
such distribution;



     CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for
such distribution (e.g., the Conversion Rate in effect before trading commences on the morning
after the Ex-Dividend Date);



     OS0 = the number of shares of Common Stock outstanding immediately prior to the
Ex-Dividend Date for such distribution;



     X = the number of shares of Common Stock issuable pursuant to such rights, warrants or
options; and



     Y = the number of shares of Common Stock equal to the quotient of (A) the aggregate price
payable to exercise such rights, warrants or options and (B) the average of the Closing Prices of
the Common Stock for each Trading Day in the 10-consecutive Trading Day period ending on the
Trading Day immediately preceding the date of announcement for the issuance of such rights,
warrants or options.



     For purposes of this Section 13(b), in determining whether any rights, warrants or options
entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of
the Closing Prices for each Trading Day in the applicable 10-consecutive Trading Day period, there
shall be taken into account any consideration the Company receives for such rights, warrants or
options and any amount payable on exercise thereof, with the value of such consideration, if other
than cash, to be determined in good faith by the Board of Directors.



     If any right, warrant or option described in this Section 13(b) is not exercised prior to the
expiration of the exercisability thereof, the new Conversion Rate shall be readjusted by the
Company to the Conversion Rate that would then be in effect if such right, warrant or option had
not been so issued.



          (c) Adjustment for Other Distributions. If, after the Convertible Preferred Stock is issued,
the Company distributes to all, or substantially all holders of its Common Stock shares of Capital
Stock, evidences of indebtedness or other assets or property, excluding:




          (i) dividends, distributions, rights, warrants or options referred to in Section 13(a)
or 13(b);




          (ii) dividends or distributions paid exclusively in cash; and




          (iii) Spin-Offs described below in this Section 13(c),




     then the Conversion Rate will be adjusted by the Company based on the following formula:








     where



     CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for
such distribution;



     CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for
such distribution;



20









 





     SP0 = the average of the Closing Prices of the Common Stock for each Trading Day in
the 10-consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and



     FMV = the fair market value (as determined in good faith by the Board of Directors) of the
shares of Capital Stock, evidences of indebtedness, assets or property distributed with respect to
each outstanding share of Common Stock on the earlier of the Record Date or the Ex-Dividend Date
for such distribution.



     With respect to an adjustment pursuant to this Section 13(c), where there has been a payment
of a dividend or other distribution to all, or substantially all, holders of Common Stock of shares
of Capital Stock of any class or series, or similar equity interest, of or relating to any
subsidiary of the Company or other business unit of the Company (a “Spin-Off”), then the
Conversion Rate in effect immediately before the close of business on the effective date of the
Spin-Off will be adjusted by the Company based on the following formula:








     where



     CR0 = the Conversion Rate in effect immediately prior to the effective date of the
Spin-Off;



     CR1 = the new Conversion Rate after the Spin-Off;



     FMV0 = the average of the Closing Prices of the Capital Stock or similar equity
interest distributed to holders of Common Stock applicable to one share of Common Stock over the
10-consecutive Trading Days after, and including, the effective date of the Spin-Off; and



     MP0 = the average of the Closing Prices of the Common Stock over the 10-consecutive
Trading Days after, and including, the effective date of the Spin-Off.



     An adjustment to the Conversion Rate made pursuant to the immediately preceding paragraph will
occur on the 10th Trading Day from, and including, the effective date of the Spin-Off;
provided that in respect of any conversion within the 10 Trading Days following, and
including, the effective date of any Spin-Off, references within this Section 13(c) to 10 Trading
Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the
effective date of such Spin-Off and the Conversion Date in determining the applicable Conversion
Rate.



     If any such dividend or distribution described in this Section 13(c) is declared but not paid
or made, the new Conversion Rate shall be readjusted by the Company to be the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.



          (d) Adjustment for Cash Dividends. If, after the Convertible Preferred Stock is issued, the
Company makes any cash dividend or distribution to all, or substantially all, holders of its
outstanding Common Stock, then the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such distribution shall be adjusted by the Company based on the following formula:









     where



     CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for
such distribution;



     CR1 = the new Conversion Rate in effect immediately after the Ex-Dividend Date for
such distribution;



21









 





     SP0 = the average of the Closing Prices of the Common Stock for each Trading Day in
the 10-consecutive Trading Day period ending on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and



     C = the amount in cash per share that the Company distributes to holders of its Common Stock.



     If any dividend or distribution described in this Section 13(d) is declared but not so paid or
made, the new Conversion Rate shall be readjusted by the Company to the Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.



          (e) Adjustment for Common Stock Repurchases. If, after the Convertible Preferred Stock is
issued, the Company or any of its subsidiaries effects a Pro Rata Repurchase of shares of Common
Stock, to the extent that the cash and value of any other consideration included in the payment per
share of its Common Stock exceeds the Closing Price of a share of its Common Stock on the Trading
Day following the effective date of such Pro Rata Repurchase, then the Conversion Rate in effect
immediately prior to the effective date of such Pro Rata Repurchase shall be adjusted by the
Company based on the following formula:









     where



     CR0 = the Conversion Rate in effect immediately prior to the effective date of such
Pro Rata Repurchase;



     CR1 = the new Conversion Rate in effect after such Pro Rata Repurchase;



     AC = the aggregate value of all cash and any other consideration (as determined in good faith
by the Board of Directors) paid or payable for the Common Stock purchased in such Pro Rata
Repurchase;



     OS0 = the number of shares of Common Stock outstanding immediately prior to such
Pro Rata Repurchase;



     OS1 = the number of shares of Common Stock outstanding immediately after the
effective date of such Pro Rata Repurchase (after giving effect to such Pro Rata Repurchase); and



     SP1 = the average of the Closing Prices of the Common Stock for each Trading Day in
the 10-consecutive Trading Day period commencing on the Trading Day following the effective date of
such Pro Rata Repurchase.



     The adjustment to the Conversion Rate under this Section 13(e) will occur on the 10th Trading
Day from, and including, the Trading Day following the effective date of such Pro Rata Repurchase;
provided that in respect of any conversion within 10 Trading Days immediately following,
and including, the effective date of such Pro Rata Repurchase, references in this Section 13(e)
with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed between the effective date of such Pro Rata Repurchase and the Conversion Date in
determining the Conversion Rate.




     (f) Additional Adjustments.




     (i) The Company may, from time to time, to the extent permitted by applicable law,
increase the Conversion Rate by any amount for any period of at least 20 Business Days if
the Board of Directors (taking into account, among other considerations, the impact of
possible income or withholding taxes on the Holders) has determined that such increase would
be in the Company’s best interests. The Company will give holders of Convertible Preferred
Stock at least 15 days prior notice of such an increase in the Conversion Rate.



22









 






     (ii) To the extent that the Company has a rights plan in effect upon any conversion of
the Convertible Preferred Stock into Common Stock, a Holder shall receive, in addition to
the Common Stock, the rights under the rights plan, unless, prior to any conversion, the
rights have separated from the Common Stock, in which case the Conversion Rate will be
adjusted at the time of separation as described in Section 13(c). A further adjustment shall
occur as described in Section 13(c) if such rights become exercisable to purchase different
securities, evidences of indebtedness or assets, subject to readjustment in the event of the
expiration, termination or redemption of such rights.




     (iii) Following:




     (A) any reclassification of the Common Stock;




     (B) a consolidation, merger, binding share exchange or combination involving
the Company;




     (C) a conveyance, transfer, sale, lease or other disposition to another Person
or entity of all or substantially all of the Company’s assets; or




the settlement amount in respect of the Company’s conversion obligation will be computed as
set forth in Section 13, based on the kind and amount of shares of stock, securities, other
property or assets (including cash or any combination thereof) that a holder of a number of
shares of Common Stock equal to the applicable Conversion Rate multiplied by the number of
shares of Convertible Preferred Stock owned would have been entitled to receive in such
transaction. However, if in any such transaction holders of Common Stock would be entitled
to elect the consideration for their Common Stock, the Company shall make adequate
provisions so that upon conversion each Holder of Convertible Preferred Stock shall be
entitled to elect the consideration that they shall receive upon conversion of Convertible
Preferred Stock as described in Section 13, if applicable.




     (iv) Except as otherwise stated in this Section 13, the Company will not be required to
adjust the Conversion Rate for the issuance of shares of Common Stock, including in
connection with satisfaction of the Company’s conversion obligation in a combination of cash
and shares of Common Stock, or any securities convertible into or exchangeable for shares of
Common Stock or the right to purchase shares of Common Stock or such convertible or
exchangeable securities.



          (g) De Minimis Impact on Conversion Rate. Notwithstanding anything in the forgoing provisions
of this Section 13 to the contrary, the Company will not be required to adjust the Conversion Rate
unless the adjustment would result in a change of at least 1% of the Conversion Rate. However, the
Company will carry forward any adjustments that are less than 1% of the Conversion Rate and make
such carried forward adjustments, regardless of whether the aggregate adjustment is less than 1%,
upon any conversion of Convertible Preferred Stock, or upon required purchases of Convertible
Preferred Stock in connection with a Fundamental Change, on every one year anniversary from the
Issue Date on the Record Date and immediately prior to the Maturity Date; provided that any
such adjustment of less than 1% that has not been made will be made upon (x) the end of each fiscal
year of the Company, (y) the date of any notice of redemption of the Convertible Preferred Stock in
accordance with the provisions hereof or any notice of a Make-Whole Fundamental Change and (z) any
Conversion Date.




          (h) Notice of Adjustments. Whenever the Conversion Rate is adjusted, the Company shall
promptly mail to Holders a notice of the adjustment. The Company shall file with the Conversion
Agent such notice briefly stating the facts requiring the adjustment and the manner of computing
it. The Conversion Agent shall not be under any duty or responsibility with respect to any such
notice of adjustment except to exhibit the same to any Holder desiring inspection thereof. The
Company shall also deliver to the Conversion Agent an Officers’ Certificate with respect to the
adjustment.




          (i) Successive Adjustments. After an adjustment to the Conversion Rate under this Section 13
has been made, any subsequent event requiring an adjustment under this Section 13 shall cause an
adjustment to the Conversion Rate as so adjusted.




23









 





          (j) Calculation of Adjustments. All adjustments to the Conversion Rate shall be calculated by
the Company to the nearest 1/10,000th of one share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share).





     (k) When No Adjustment Required.




     (i) Except as otherwise provided in this Section 13, the Conversion Rate will not be
adjusted for the issuance of Common Stock or any securities convertible into or exchangeable
for Common Stock or carrying the right to purchase any of the foregoing or for the
repurchase of Common Stock.




     (ii) No adjustment to the Conversion Rate need be made:




     (A) upon the issuance of any shares of Common Stock pursuant to any present or
future plan or arrangement providing for the reinvestment of dividends or interest
payable on securities of the Company and the investment of additional optional
amounts in Common Stock under any plan;




     (B) upon the issuance of any shares of Common Stock or options, warrants or
other rights to acquire Common Stock (including the issuance of Common Stock
pursuant to such options, warrants or other rights) in any transaction resulting in
an exchange for fair market value, including in connection with a reduction of
indebtedness or liabilities of the Company or any of its subsidiaries;




     (C) upon the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
subsidiaries;




     (D) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security outstanding as
of the Issue Date (or otherwise issued as a pay-in-kind dividend in respect thereof)
(unless otherwise specifically provided in Section 13); or




     (E) for accumulated and unpaid and accrued and unpaid dividends on the
Convertible Preferred Stock.




     (iii) No adjustment to the Conversion Rate need be made for a change in the par value
or no par value of the Common Stock.




     (iv) No adjustment to the Conversion Rate will be made to the extent that such
adjustment would result in the Conversion Price being less than the par value of the Common
Stock.



          (l) Record Date. For purposes of this Section 13, “Record Date” means, with respect
to any dividend, distribution or other transaction or event in which the holders of the 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 holders of the Common Stock
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).




          (m) Multiple Adjustments. For the avoidance of doubt, if an event occurs that would trigger
an adjustment to the Conversion Rate pursuant to this Section 13 under more than one subsection
hereof, such event, to the extent fully taken into account in a single adjustment, shall not result
in multiple adjustments hereunder.




          (n) Other Adjustments. The Company may, but shall not be required to, make such increases in
the Conversion Rate, in addition to those required by this Section, as the Board of Directors
(taking into account, among other considerations, the impact of possible income or withholding
taxes on the Holders) considers to be




24









 




advisable in order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights or warrants to
purchase or subscribe for stock or from any event treated as such for income tax purposes or for
any other reason.




          (o) Conversion Agent. The Conversion Agent shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts exist that may require any adjustment
of the applicable Conversion Rate or with respect to the nature or extent or calculation of any
such adjustment when made, or with respect to the method employed in making the same. The
Conversion Agent shall be fully authorized and protected in relying on an Officers’ Certificate and
any adjustment contained therein and the Conversion Agent shall not be deemed to have knowledge of
any adjustment unless and until it has received such certificate. The Conversion Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property, that may at the time be issued or delivered with respect
to any Convertible Preferred Stock; and the Conversion Agent makes no representation with respect
thereto. The Conversion Agent shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock pursuant to the conversion of Convertible Preferred
Stock or to comply with any of the duties, responsibilities or covenants of the Company contained
in this Section 13.




          (p) Fractional Shares. No fractional shares of Common Stock will be issued to Holders of the
Convertible Preferred Stock upon conversion. All shares of Common Stock (including fractional
shares thereof) that would issuable upon conversion of more than one share of Convertible Preferred
Stock by a Holder thereof shall be aggregated for purposes of determining whether the conversion
would result in the issuance of any fractional share of Common Stock. If after such aggregation,
the conversion would result in the issuance of any fractional share of Common Stock, in lieu of
issuing a fractional share of Common Stock, a Holder will be entitled to receive, at the option of
the Company, (i) an amount in cash equal to the fraction of a share of Common Stock multiplied by
the Closing Price of the Common Stock on the Trading Day immediately preceding the applicable
Conversion Date or (ii) an additional whole share of Common Stock.




Section 14. Adjustment for Reorganization Events.





     (a) Reorganization Events. In the event of:




     (i) any consolidation or merger of the Company with or into another person (other than
a merger or consolidation in which the Company is the continuing corporation and in which
the shares of Common Stock outstanding immediately prior to the merger or consolidation are
not exchanged for cash, securities or other property of the Company or another corporation);




     (ii) any sale, transfer, lease or conveyance to another person of all or substantially
all the property and assets of the Company in which holders of Common Stock would be
entitled to receive cash, securities or other property for their shares of Common Stock; or




     (iii) any statutory exchange of securities of the Company with another Person (other
than in connection with a merger or acquisition) or any binding share exchange which
reclassifies or changes its outstanding Common Stock or pursuant to which the holders of
Common Stock would be entitled to receive cash, securities or other property for their
shares of Common Stock;


each of which is referred to as a “Reorganization Event,” each share of the Convertible
Preferred Stock outstanding immediately prior to such Reorganization Event will, without the
consent of the Holders of the Convertible Preferred Stock, become convertible into the kind and
amount of securities, cash and other property (the “Exchange Property”) receivable in such
Reorganization Event (without any interest thereon, and without any right to dividends or
distributions thereon which have a record date that is prior to the applicable Conversion Date) per
share of Common Stock by a holder of Common Stock that is not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company or to which such
sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or
an Affiliate of a Constituent Person. Upon the conversion of any Convertible Preferred Stock
pursuant to Section 7 or Section 11 on each Conversion Date following a Reorganization Event, the
Conversion Rate then in effect will be applied to the value on such Conversion Date of


25









 






such securities, cash or other property received per share of Common Stock, as determined in
accordance with this Section 14.




          (b) Exchange Property Election. In the event that holders of the shares of Common Stock have
the opportunity to elect the form of Exchange Property to be received in such transaction, the form
of Exchange Property that the Holders shall be entitled to receive shall be determined by the
Holders of two-thirds of the outstanding Convertible Preferred Stock.




          (c) Successive Reorganization Events. The Company shall make provision for the provisions of
this Section 14 to similarly apply to successive Reorganization Events and the provisions of
Section 13 to apply to any shares of capital stock of the Company (or any successor) received by
the holders of the Common Stock in any such Reorganization Event.




          (d) Reorganization Event Notice. The Company (or any successor) shall, within 10 days of the
occurrence of any Reorganization Event, provide written notice to the Holders of the occurrence of
such event and of the kind and amount of cash, securities or other property that constitutes the
Exchange Property. Failure to deliver such notice shall not affect the operation of this
Section 14.




Section 15. Voting Rights.




          (a) General. So long as any shares of Series A Convertible Preferred Stock are outstanding,
the Series A Holders shall vote together with the holders of Common Stock on all matters upon which
the holders of Common Stock are entitled to vote. Each Series A Holder shall be entitled to such
number of votes as the number of shares of Common Stock into which such Series A Holder’s shares of
Series A Convertible Preferred Stock would be convertible at the time of the record date for any
such vote (without regard to the limitations set forth in Section 7) and for the purpose of such
calculation, shares of Common Stock sufficient for the full conversion of all shares of Series A
Convertible Preferred Stock shall be deemed to be authorized for issuance under the Charter on such
date and shall be included in such calculation; provided, however, that until such
time as the Conversion Stockholder Approval has been obtained, (a) the aggregate number of votes
entitled to be cast by the Series A Convertible Preferred Stock shall not exceed 19.99% of the
voting power of the Common Stock outstanding immediately prior to the issuance of the Series A
Convertible Preferred Stock, applied on a pro rata per share basis, among all Holders of Series A
Convertible Preferred Stock and (b) the aggregate number of votes entitled to be cast by the Series
A-T Convertible Preferred Stock shall not exceed 1.00% of the voting power of the Common Stock
outstanding immediately prior to the issuance of the Series A Convertible Preferred Stock.




          (b) Right to Elect Preferred Directors.





     (i) Voting Right. So long as any shares of Series A-T Convertible Preferred Stock are
outstanding, the Series A-T Holders shall have the right, voting separately as a single
class, to the exclusion of any other Holders and the holders of Common Stock, to elect a
total number of directors of the Company equal to the Series A-T Board Representation
Entitlement. So long as any shares of Series A-Y Convertible Preferred Stock are
outstanding, the Series A-Y Holders shall have the right, voting separately as a single
class, to the exclusion of any other Holders and the holders of Common Stock, to elect a
total number of directors of the Company equal to the Series A-Y Board Representation
Entitlement. Each such director elected by either the Series A-T Holders or the Series A-Y
Holders is a “Series A Preferred Director”. On the Issue Date, the Series A
Preferred Directors elected by the Series A-T Holders shall be Christian W. E. Haub, Dr.
Andreas Guldin, John D. Barline and Dr. Jens-Jürgen Böckel and the Series A Preferred
Directors elected by the Series A-Y Holders shall be Frederic F. Brace and Terrence J.
Wallock.




     (ii) Election. The election of the Applicable Series A Preferred Directors will take
place at any annual meeting of stockholders or any special meeting of the Applicable Series
A Holders, called as provided herein. If at any time the number of Applicable Series A
Preferred Directors is less than the Applicable Series A Board Representation Entitlement,
the Company shall promptly notify the Applicable Series A Holders and the secretary of the
Company may, and upon the written request of the Applicable Series A Holders of at least 25%
of the Applicable Series A Convertible Preferred Stock (addressed to the Corporate Secretary
at the Company’s principal office) must (unless such request is received less than 90



26









 







days before the date fixed for the next annual or special meeting of the stockholders,
in which event such election shall be held at such next annual or special meeting of
stockholders), call a special meeting of the Applicable Series A Holders for the election of
the number of directors necessary to make the number of the Applicable Series A Preferred
Directors equal to the Applicable Series A Board Representation Entitlement. The Series A
Preferred Directors shall each be entitled to one vote per director on any matter. At any
meeting held for the purpose of electing the Applicable Series A Preferred Directors at
which the Applicable Series A Holders shall have the right to elect directors as provided
herein, the presence in person or by proxy of the Applicable Series A Holders of shares of
the Applicable Series A Convertible Preferred Stock representing at least a majority in
voting power of the then outstanding shares of the Applicable Series A Convertible Preferred
Stock shall constitute a quorum of such class for the election of the Applicable Series A
Preferred Directors. The affirmative vote of the holders of shares of Applicable Series A
Convertible Preferred Stock constituting a majority of the shares of the Applicable Series A
Convertible Preferred Stock present at such meeting, in person or by proxy, shall be
required to elect any such Applicable Series A Preferred Director, in each case calculated
on a per-directorship basis. In exercising the voting rights set forth in this
Section 15(b), each share of Applicable Series A Convertible Preferred Stock shall be
entitled to one vote.




     (iii) Notice of Special Meeting. Notice for a special meeting will be given in a
similar manner to that provided in the Company’s by-laws for a special meeting of the
stockholders. If the secretary of the Company does not call a special meeting within 20 days
after receipt of any such request, then any Applicable Series A Holder may (at the expense
of the Company) call such meeting, upon notice as provided in this Section 15(b)(iii), and
for that purpose will have access to the stock register of the Company. The Applicable
Series A Preferred Directors elected at any such special meeting will hold office until the
next annual meeting of the stockholders of the Company and until their successors are duly
elected and qualified unless they have been previously removed or terminated pursuant to
Section 15(b)(iv) or 15(b)(v), respectively.




     (iv) Removal; Vacancy. Any Applicable Series A Preferred Director may be removed at any
time without cause by the Applicable Series A Holders of a majority of the outstanding
shares of the Applicable Series A Convertible Preferred Stock. In case any vacancy in the
office of an Applicable Series A Preferred Director occurs (other than as a result of a
termination pursuant to Section 15(b)(v)), the vacancy may be filled by the written consent
of the Applicable Series A Preferred Directors remaining in office, or if none remains in
office, by the vote of the Applicable Series A Holders as set forth in Section 15(b)(ii) to
serve until the next annual meeting of the stockholders and until their successors are duly
elected and qualified.




     (v) Termination. If at any time the number of Applicable Series A Preferred Directors
exceeds the Applicable Series A Board Representation Entitlement, the number of Applicable
Series A Preferred Directors shall be reduced immediately so that the total number of
Applicable Series A Preferred Directors is equal to the Applicable Series A Board
Representation Entitlement at such time. To effect such reduction, the term of office of the
requisite number of Applicable Series A Preferred Directors shall immediately terminate,
with the individual(s) whose term of office shall so terminate being determined by the
Applicable Series A Preferred Directors in office immediately prior thereto. Any vacancy on
the Board of Directors resulting from such cessation of the term of office of an Applicable
Series A Preferred Director may be filled in accordance with the Company’s by-laws.




     (vi) Unfit Directors. At least fifteen Business Days prior to the election of any
Applicable Series A Preferred Director, the Applicable Series A Holders shall submit to the
Board of Directors a notice containing the name of the individual that such Applicable
Series A Holders intend to elect as an Applicable Series A Preferred Director. To the extent
that the Board of Directors determines, in good faith and after consideration of specific
written advice of outside counsel (a copy of which will be provided to the Applicable Series
A Holders), that such election would reasonably be expected to violate their duties under
MGCL § 2-405.1(a) because (i) such individual is unfit to serve as a director of a company
listed or quoted on the primary stock exchange or quotation system on which the Common Stock
is listed or quoted or (ii) service by such nominee as a director of Company would
reasonably be expected to violate applicable law, the New York Stock Exchange Listed Company
Manual or, if the Company is not listed on the New York Stock Exchange, any comparable rule
or regulation of the primary stock exchange or



27









 







quotation system on which the Company Common Stock is listed or quoted, the Applicable
Series A Holders shall not elect such individual and shall not elect any other individual
without first complying with this Section 15(b)(vi) with respect to such other individual;
provided that the Series A Preferred Directors on the Issue Date shall be deemed to
have been elected in accordance with this Section 15(b)(vi).




     (vii) Written Consent. Notwithstanding anything to the contrary in this Section 15(b),
the Applicable Series A Holders shall be entitled to take by written consent any action
described in this Section 15(b).



          (c) Voting Rights of Series B Convertible Preferred Stock. Except as provided in Sections
15(d) and 15(e), the Series B Convertible Preferred Stock shall have no voting rights.




          (d) Special Voting Right.





     (i) Voting Right. At any time when the equivalent of six quarterly dividends payable on
the shares of Convertible Preferred Stock or any class or series of Parity Stock upon which
voting rights equivalent to those granted by this Section 15(d) have been conferred and are
exercisable (“Special Voting Parity Stock”) (whether or not consecutive and whether
or not declared) are accrued and unpaid (a “Nonpayment”), the number of directors
constituting the Board of Directors shall be automatically increased by two, and the Holders
and the holders of any class or series of Special Voting Parity Stock, shall have the right,
voting together as a single class without regard to class or series (and with voting power
allocated pro rata based on the liquidation preference of such class or series), to the
exclusion of the holders of Common Stock, to elect two directors of the Company to fill such
newly created directorships (and to fill any vacancies in the terms of such directorships);
provided that the Holders and the holders of any Special Voting Parity Stock shall
not be entitled to elect such directors to the extent such election would cause the Company
to violate the corporate governance requirements of The New York Stock Exchange (or other
exchange on which the Company’s securities may be listed) that listed companies must have a
majority of Independent Directors; provided further that the Board of Directors
shall at no time include more than two such directors. The Company’s exercise of the
Convertible Preferred Stock PIK Dividend Provision shall not constitute “Nonpayment” for
purposes of this Section 15(d). Each such director elected by the Holders and the holders of
any Special Voting Parity Stock is a “Nonpayment Preferred Director”.




     (ii) Election. The election of the Nonpayment Preferred Directors will take place at
any annual meeting of stockholders or any special meeting of the Holders and the holders of
any Special Voting Parity Stock, called as provided herein, and thereafter at each annual
meeting until such time as all dividends in arrears on the Convertible Preferred Stock and
the Special Voting Parity Stock shall have been paid in full. At any time after the special
voting right has vested pursuant to Section 15(d)(i) above, the Company shall promptly
notify the Holders and the holders of any Special Voting Parity Stock and the secretary of
the Company may, and upon the written request of the Holders of at least 25% of the
Convertible Preferred Stock or the holders of at least 25% of any class or series of Special
Voting Parity Stock (addressed to the Corporate Secretary at the Company’s principal office)
must (unless such request is received less than 90 days before the date fixed for the next
annual or special meeting of the stockholders, in which event such election shall be held at
such next annual or special meeting of stockholders), call a special meeting of the Holders
and the holders of Special Voting Parity Stock for the election of the two directors to be
elected by them as provided in Section 15(d)(iii) below. The Nonpayment Preferred Directors
shall each be entitled to one vote per director on any matter. At any meeting held for the
purpose of electing the Nonpayment Preferred Directors at which the Holders and the holders
of any Special Voting Parity Stock shall have the right to elect directors as provided
herein, the presence in person or by proxy of Holders and holders of any Special Voting
Parity Stock representing at least a majority in voting power of the then outstanding shares
of Convertible Preferred Stock and any Special Voting Parity Stock (voting together as a
single class without regard to class or series and with voting power allocated pro rata
based on liquidation preference) shall constitute a quorum of such class for the election of
the Nonpayment Preferred Directors. The affirmative vote of Holders and holders of any
Special Voting Parity Stock constituting two-thirds of the voting power of the Convertible
Preferred Stock and any Special Voting Parity Stock present at such meeting (voting together
as a single class without regard to class or series and with voting power allocated



28









 







pro rata based on liquidation preference), in person or by proxy, shall be required to
elect any such Nonpayment Preferred Director, in each case calculated on a per-directorship
basis.




     (iii) Notice of Special Meeting. Notice for a special meeting will be given in a
similar manner to that provided in the Company’s by-laws for a special meeting of the
stockholders. If the secretary of the Company does not call a special meeting within 20 days
after receipt of any such request, then any Holder or any holder of any Special Voting
Parity Stock may (at the expense of the Company) call such meeting, upon notice as provided
in this Section 15(d)(iii), and for that purpose will have access to the stock register of
the Company. The Nonpayment Preferred Directors elected at any such special meeting will
hold office until the next annual meeting of the stockholders of the Company and until their
successors are duly elected and qualified unless they have been previously removed or
terminated pursuant to Section 15(d)(iv) or 15(d)(v), respectively.




     (iv) Removal; Vacancy. Any Nonpayment Preferred Director may be removed at any time
without cause by the Holders of two-thirds of the voting power of the then outstanding
shares of Convertible Preferred Stock and any Special Voting Parity Stock (such voting power
allocated pro rata based on liquidation preference). In case any vacancy in the office of a
Nonpayment Preferred Director occurs (other than prior to the initial election of the
Nonpayment Preferred Directors), the vacancy may be filled by the written consent of the
Nonpayment Preferred Director remaining in office, or if none remains in office, by the vote
of the Holders and the holders of any Special Voting Parity Stock as set forth in
Section 15(d)(ii) to serve until the next annual meeting of the stockholders and until their
successors are duly elected and qualified.




     (v) Termination. Whenever the Company has paid all dividends in arrears in full, then
the right of the Holders and the holders of any Special Voting Parity Stock to elect the
Nonpayment Preferred Directors will cease (but subject always to the same provisions for the
vesting of the special voting rights in the case of any similar non-payment of dividends in
respect of future Dividend Periods). The terms of office of the Nonpayment Preferred
Directors will immediately terminate, and the number of directors constituting the Board of
Directors will be reduced accordingly.




     (vi) Written Consent. Notwithstanding anything to the contrary in this Section 15(d),
the Holders and the holders of any Special Voting Parity Stock shall be entitled to take by
written consent any action described in this Section 15(d).



          (e) Issuances; Adverse Changes. So long as any shares of Convertible Preferred Stock are
outstanding, unless a greater percentage shall be required by law, the vote or consent of the
Holders of at least two-thirds of the shares of Convertible Preferred Stock at the time
outstanding, voting together as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, will be necessary for effecting
or validating any of the following actions, whether or not such approval is required pursuant to
the MGCL:





     (i) any amendment, alteration or repeal of any provision of the Charter (including
these Articles Supplementary creating the Convertible Preferred Stock) or the Company’s
by-laws, whether by merger, consolidation or otherwise, that would alter or change the
preferences or privileges of the Convertible Preferred Stock so as to affect them adversely;




     (ii) any amendment or alteration of the Charter, whether by merger, consolidation or
otherwise, to authorize or create, or increase the number of authorized shares of, or any
securities convertible into shares of, or reclassify any security into, any class or series
of the Company’s capital stock ranking equal or senior to the Convertible Preferred Stock in
the payment of dividends or in the distribution of assets on any liquidation, dissolution or
winding-up of the affairs of the Company; or




     (iii) the consummation of a binding share exchange or reclassification involving the
Convertible Preferred Stock or a merger or consolidation of the Company with another entity,
except that holders of Convertible Preferred Stock will have no right to vote under this
provision if, in each case, (A) the Convertible Preferred Stock remains outstanding or, in
the case of any such merger or consolidation with



29









 







respect to which the Company is not the surviving or resulting entity, is converted
into or exchanged for preferred securities of the surviving or resulting entity or its
ultimate parent, that is an entity organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and that is a corporation
for U.S. federal income tax purposes (or if such entity is not a corporation, the Company
having received an opinion of nationally recognized counsel experienced in such matters to
the effect that Holders will be subject to tax for U.S. federal income tax purposes with
respect to such new preferred securities after such merger or consolidation in the same
amount, at the same time and otherwise in the same manner as would have been the case under
the Convertible Preferred Stock prior to such merger or consolidation), and (B) such
Convertible Preferred Stock remaining outstanding or such preferred securities, as the case
may be, have such rights, preferences, privileges and voting powers, taken as a whole, as
are not materially less favorable to the holders thereof than the rights, preferences,
privileges and voting powers of the Convertible Preferred Stock, taken as a whole;


provided, however, that any increase in the number of authorized shares of
preferred stock or any securities convertible into preferred stock or the creation and issuance, or
an increase in the number of authorized or issued shares, of other series of preferred stock or any
securities convertible into preferred stock, in each case, ranking junior to the Convertible
Preferred Stock with respect to the payment of dividends (whether such dividends are cumulative or
non-cumulative) and the distribution of assets upon the Company’s liquidation, dissolution or
winding up will not be deemed to adversely affect the preferences or privileges of the Convertible
Preferred Stock and Holders will have no right to vote on such an increase, creation or issuance.




          In addition to the vote or consent required by the first sentence of this Section 15(e), if
any amendment, alteration or repeal specified in clause (i) of the first sentence of this
Section 15(e) would adversely affect one or more series of Convertible Preferred Stock
disproportionately, the vote or consent of the Holders of at least two-thirds of each such series
of Convertible Preferred Stock as are adversely affected by and entitled to vote on the matter,
each voting as a class, will be necessary for effecting or validating such action.




          In exercising the voting rights set forth in this Section 15(e), each share of Convertible
Preferred Stock shall be entitled to one vote.




Section 16. Preemption.




          The Holders shall not have any rights of preemption under these Articles Supplementary.




Section 17. Rank.




          Notwithstanding anything set forth in the Charter, including these Articles Supplementary, to
the contrary, the Board of Directors or any duly authorized committee thereof, without the vote of
the Holders, may authorize and issue additional shares of Junior Stock.




Section 18. Repurchase.




          Subject to the limitations imposed herein, the Company may purchase and sell Convertible
Preferred Stock from time to time to such extent, in such manner, and upon such terms as the Board
of Directors or any duly authorized committee thereof may determine; provided,
however, that the Company shall not use any of its funds for any such purchase when there
are reasonable grounds to believe that the Company is, or by such purchase would be, rendered
insolvent; provided further, however, that in the event the Company beneficially
owns any Convertible Preferred Stock, the Company will ensure that voting rights in respect of such
Convertible Preferred Stock are not exercised.




Section 19. Reserved.




Section 20. No Sinking Fund.




          Shares of Convertible Preferred Stock are not subject to the operation of a sinking fund.




30









 





Section 21. Reservation of Common Stock.




          (a) Sufficient Shares. Following the Conversion Stockholder Approval and the Authorized
Capital Stock Charter Amendment Approval, the Company shall at all times reserve and keep available
out of its authorized and unissued Common Stock or shares acquired by the Company, solely for
issuance upon the conversion of shares of Convertible Preferred Stock as provided in these Articles
Supplementary, free from any preemptive or other similar rights (except for the preemptive rights
set forth in the Amended and Restated Yucaipa Stockholder Agreement or the Amended and Restated
Tengelmann Stockholder Agreement), such number of shares of Common Stock as shall from time to time
be issuable upon the conversion of all the shares of Convertible Preferred Stock then outstanding.




          (b) Free and Clear Delivery. All shares of Common Stock delivered upon conversion of the
Convertible Preferred Stock shall be duly authorized, validly issued, fully paid and
non-assessable, free and clear of all liens, claims, security interests and other encumbrances
(other than liens, charges, security interests and other encumbrances created by the Holders).




          (c) Compliance with Law. Prior to the delivery of any securities that the Company shall be
obligated to deliver upon conversion of the Convertible Preferred Stock, the Company shall use its
reasonable best efforts to comply with all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any approval of or consent to the delivery
thereof by, any governmental authority.




          (d) Listing. The Company hereby covenants and agrees that, if at any time the Common Stock
shall not be listed on the New York Stock Exchange or any other national securities exchange
(including The Nasdaq Stock Market) or automated quotation system, the Company will, if permitted
by the rules of such exchange or automated quotation system, list and keep listed, so long as the
Common Stock shall be so listed on such exchange or automated quotation system, all the Common
Stock issuable upon conversion of the Convertible Preferred Stock; provided,
however, that if the rules of such exchange or automated quotation system require the
Company to defer the listing of such Common Stock until the first conversion of Convertible
Preferred Stock into Common Stock in accordance with the provisions hereof, the Company covenants
to list such Common Stock issuable upon conversion of the Convertible Preferred Stock in accordance
with the requirements of such exchange or automated quotation system at such time.




Section 22. Transfer Agent, Conversion Agent, Registrar and Paying Agent.




          The duly appointed Transfer Agent, Conversion Agent, Registrar and paying agent for the
Convertible Preferred Stock shall be American Stock Transfer & Trust Company. The Company may, in
its sole discretion, remove the Transfer Agent in accordance with the agreement between the Company
and the Transfer Agent; provided that the Company shall appoint a successor transfer agent
who shall accept such appointment prior to the effectiveness of such removal. Upon any such removal
or appointment, the Company shall send notice thereof by first-class mail, postage prepaid, to the
Holders.




Section 23. Replacement Certificates.




          (a) Mutilated, Destroyed, Stolen and Lost Certificates. The Company shall replace any
mutilated certificate at the Holder’s expense upon surrender of that certificate to the Transfer
Agent. The Company shall replace certificates that become destroyed, stolen or lost at the Holder’s
expense upon delivery to the Company and the Transfer Agent of reasonably satisfactory evidence
that the certificate has been destroyed, stolen or lost, together with any customary indemnity that
may be required by the Transfer Agent and the Company.




          (b) Certificates Following Conversion. The Company shall not be required to issue any
certificates representing the Convertible Preferred Stock on or after the applicable Conversion
Date. In place of the delivery of a replacement certificate following the applicable Conversion
Date, the Company shall cause the Transfer Agent, upon delivery of the evidence and indemnity
described in clause (a) above, to deliver the shares of Common Stock pursuant to the terms of the
Convertible Preferred Stock formerly represented by the certificate.




31









 





Section 24. Form and Transfer.




          (a) Certificated Preferred Stock. Shares of Convertible Preferred Stock shall be issued in
the form of one or more physical certificated shares of Convertible Preferred Stock (each, a
“Certificated Preferred Stock”) and, unless otherwise determined by the Company and the
Transfer Agent, with a legend (the “Restricted Preferred Stock Legend”) in substantially
the form attached hereto as Exhibit A, which is hereby incorporated in and expressly made a part of
these Articles Supplementary. The Certificated Preferred Stock may have notations, legends or
endorsements required by law, stock exchange rules, agreements between the Company and the
applicable Holder, if any, or usage.




          (b) Certificated Common Stock. Shares of Common Stock issuable upon conversion of shares of
Convertible Preferred Stock or delivered as payment for dividends pursuant to Section 4 of these
Articles Supplementary shall be issued in the form of one or more physical certificated shares of
Common Stock (each, a “Certificated Common Stock” and, together with Certificated Preferred
Stock, a “Certificated Security”) and, unless otherwise determined by the Company and the
Transfer Agent, with a legend (the “Restricted Common Stock Legend” and, together with the
Restricted Preferred Stock Legend, the “Restricted Stock Legends”) in substantially the
form attached hereto as Exhibit B.





     (c) Transfer of Securities.




     (i) The shares of Convertible Preferred Stock and the shares of Common Stock issuable
upon conversion of shares of Convertible Preferred Stock (collectively, the
“Securities”) have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”), or any other applicable securities laws and may not be
offered or sold except in compliance with the registration requirements of such laws, or
pursuant to an exemption from such laws, or in a transaction not subject to such laws.




     (ii) When a Certificated Security bearing a Restricted Stock Legend is presented to the
Transfer Agent with a request to register the transfer of such Certificated Security, the
Transfer Agent shall register such transfer, subject to the rules and procedures of the
Transfer Agent; provided that the Transfer Agent has received (1) a written
instrument of transfer in form reasonably satisfactory to the Company and the Transfer Agent
duly executed by the Holder of such Certificated Security, (2) a certificate of transfer in
substantially the form attached hereto as Exhibit C or Exhibit D, as applicable, and (3)
such other certifications, legal opinions and other information as the Company or the
Transfer Agent may reasonably require to confirm that such transfer is being made in
accordance with the transfer restrictions set forth in the Restricted Stock Legend.




     (iii) If a request is made to remove the applicable Restricted Stock Legend on any
Securities, the Restricted Stock Legend shall be removed if, unless otherwise required by
applicable securities laws, (1) the sale of such shares is registered under the Securities
Act or (2) there is delivered to the Company and the Transfer Agent an opinion of counsel,
in form, substance and scope reasonably satisfactory to the Company to the effect that a
sale or transfer of such shares may be made without registration under the Securities Act.




     (iv) The Company may refuse to register any transfer of Securities that is not made in
accordance with the provisions of the applicable Restricted Stock Legend; provided
that the provisions of this Section 24(c) shall not be applicable to any Security that does
not bear any Restricted Stock Legend.




     (v) Notwithstanding anything to the contrary in this Section 24(c), (1) the Company
shall cause the Transfer Agent to exchange Series A-T Convertible Preferred Stock for Series
B-T Convertible Preferred Stock if such Series A-T Convertible Preferred Stock is being
transferred to a Person other than a Tengelmann Party; provided that if the
Conversion Stockholder Approval has been obtained the Transfer Agent shall exchange Series
A-T Convertible Preferred Stock for Series A-Y Convertible Preferred Stock if such Series
A-T Convertible Preferred Stock is being transferred to a Yucaipa Party and (2) the Company
shall cause the Transfer Agent to exchange Series A-Y Convertible Preferred Stock for Series
B-Y Convertible Preferred Stock if such Series A-Y Convertible Preferred Stock is being
transferred to a Person other than a Yucaipa Party; provided that the Transfer Agent
shall exchange Series A-Y Convertible



32









 







Preferred Stock for Series A-T Convertible Preferred Stock if such Series A-Y
Convertible Preferred Stock is being transferred to a Tengelmann Party.



Section 25. Taxes.




          (a) Transfer Taxes. The Company shall pay any and all stock transfer, documentary, stamp and
similar taxes that may be payable in respect of any issuance or delivery of shares of Convertible
Preferred Stock or shares of Common Stock or other securities issued on account of Convertible
Preferred Stock pursuant hereto or certificates representing such shares or securities. The Company
shall not, however, be required to pay any such tax that may be payable in respect of any transfer
involved in the issuance or delivery of shares of Convertible Preferred Stock, shares of Common
Stock or other securities in a name other than that in which the shares of Convertible Preferred
Stock with respect to which such shares or other securities are issued or delivered were
registered, or in respect of any payment to any Person other than a payment to the registered
holder thereof, and shall not be required to make any such issuance, delivery or payment unless and
until the Person otherwise entitled to such issuance, delivery or payment has paid to the Company
the amount of any such tax or has established, to the satisfaction of the Company, that such tax
has been paid or is not payable.




          (b) Withholding. All payments and distributions (or deemed distributions) on the shares of
Convertible Preferred Stock (and on the shares of Common Stock received upon their conversion)
shall be subject to withholding and backup withholding of tax to the extent required by law,
subject to applicable exemptions, and amounts withheld, if any, shall be treated as received by
Holders.




Section 26. Notices.




          All notices referred to herein shall be in writing, and, unless otherwise specified herein,
all notices hereunder shall be deemed to have been given upon the earlier of receipt thereof or
three Business Days after the mailing thereof if sent by registered or certified mail (unless first
class mail shall be specifically permitted for such notice under the terms of these Articles
Supplementary) with postage prepaid, addressed: (i) if to the Company, to its office at 2 Paragon
Drive, Montvale, New Jersey 07645 (Attention: Corporate Secretary) or to the Transfer Agent at its
office at 59 Maiden Lane, New York, New York 10038 (Attention: Geraldine Zarbo), or other agent of
the Company designated as permitted by these Articles Supplementary, or (ii) if to any Holder, to
such Holder at the address of such Holder as listed in the stock record books of the Company (which
may include the records of the Transfer Agent) or (iii) to such other address as the Company or any
such Holder, as the case may be, shall have designated by notice similarly given.




          FIFTH: The shares of Convertible Preferred Stock have been classified and designated by the
Board of Directors under the authority contained in the Charter.




          SIXTH: These Articles Supplementary have been approved by the Board of Directors in the manner
and by the vote required by law, namely, by the vote of a majority of directors at a meeting of the
Board of Directors duly called and held.




          SEVENTH: The undersigned acknowledges these Articles Supplementary to be the corporate act of
the Company and, as to all matters or facts required to be verified under oath, the undersigned
acknowledges that, to the best of his knowledge, information and belief, these matters and facts
are true in all material respects and that this statement is made under the penalties of perjury.




33









 







          IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to be duly executed
this 3rd day of August, 2009.




	 	 	 	 	 	 	 	 	 
	 	 	THE GREAT ATLANTIC & PACIFIC TEA COMPANY,
INC.,	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Eric Claus	 	 
	 

	 	 	 	 	 	 

Name:  Eric Claus
	 	 
	 

	 	 	 	 	 	Title:  President and Chief
Executive Officer	 	 






	 	 	 	 	 
	ATTEST:	 	 
	 
	 	 	 	 
	By:
	 	/s/ Brenda Galgano	 	 
	 

	 	 

Name:  Brenda Galgano
	 	 
	 

	 	Title:  Senior Vice President, Chief
Financial Officer	 	 



















 





Exhibit A




FORM OF

8% CUMULATIVE CONVERTIBLE PREFERRED STOCK, SERIES [•]




FACE OF SECURITY



THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND THE SECURITIES ISSUABLE UPON CONVERSION OF
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS [AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS SET FORTH IN THE AGREEMENTS REFERRED TO
BELOW (AS SUCH AGREEMENTS MAY BE AMENDED FROM TIME TO TIME). THIS INSTRUMENT IS ISSUED PURSUANT TO
AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS OF AN INVESTMENT AGREEMENT, DATED
AS OF JULY 23, 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE
INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN AND AN AMENDED AND RESTATED STOCKHOLDER AGREEMENT,
DATED AS OF AUGUST 4, 2009, BY AND AMONG THE ISSUER OF THIS INSTRUMENT AND THE INVESTORS AND THE
INVESTORS’ REPRESENTATIVE REFERRED TO THEREIN. THE SECURITIES REPRESENTED BY THIS INSTRUMENT AND
THE SECURITIES ISSUABLE UPON CONVERSION OF SECURITIES REPRESENTED BY THIS INSTRUMENT MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID AGREEMENTS. ANY SALE OR OTHER
TRANSFER NOT IN COMPLIANCE WITH SAID AGREEMENTS WILL BE VOID. THE FOREGOING SUMMARY DOES NOT
PURPORT TO BE COMPLETE AND IS SUBJECT TO AND QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SAID
AGREEMENTS, COPIES OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. SUCH
REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE]1.



THE COMPANY IS AUTHORIZED TO ISSUE DIFFERENT CLASSES AND SERIES OF STOCK. THE DESIGNATIONS AND ANY
PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS AND SERIES OF
STOCK AND THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES FOR EACH CLASS AND SERIES OF STOCK
(AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF
FUTURE CLASSES AND SERIES OF STOCK) WILL BE FURNISHED WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.






 




			
	1	 	Include the bracketed language only for Series A-Y Convertible
Preferred Stock, Series B-Y Convertible Preferred Stock held by a Yucaipa Party
and Series B-T Convertible Preferred Stock held by a Yucaipa Party.




A-1 









 










			
	Certificate Number:___
	 	___Shares of Convertible Preferred Stock, Series [•]






THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.




8% Cumulative Convertible Preferred Stock, Series [•]

(liquidation preference $1,000 per share)




     THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “Company”), hereby
certifies that [HOLDER] (the “Holder”) is the registered owner of [NUMBER OF SHARES] fully paid and
non-assessable shares of capital stock of the Company designated as the Convertible Preferred
Stock, Series [•], without par value per share and an initial liquidation preference of $1,000.00
per share (the “Series [•] Convertible Preferred Stock”). Shares of Series [•] Convertible
Preferred Stock are transferable on the books and records of the Transfer Agent and Registrar, in
person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, voting powers, preferences, conversion and other rights,
qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of
the Series [•] Convertible Preferred Stock represented hereby are issued and shall in all respects
be subject to the provisions of the Articles Supplementary of 8% Cumulative Convertible Preferred
Stock of the Company dated August 3, 2009, as the same may be amended from time to time in
accordance with its terms (the “Articles Supplementary”). Capitalized terms used herein but not
defined shall have the respective meanings given them in the Articles Supplementary. The Company
will provide a copy of the Articles Supplementary to the Holder without charge upon written request
to the Company at its principal place of business.



     Reference is hereby made to select provisions of the Series [•] Convertible Preferred Stock
set forth on the reverse hereof, and to the Articles Supplementary, which select provisions and the
Articles Supplementary shall for all purposes have the same effect as if set forth in this
certificate.



     Upon receipt of this certificate, the Holder is bound by the Articles Supplementary and is
entitled to the benefits thereunder. Unless the Registrar’s valid countersignature appears hereon,
the Series [•] Convertible Preferred Stock represented hereby shall not be entitled to any benefit
under the Articles Supplementary or be valid or obligatory for any purpose.



     IN WITNESS WHEREOF, the Company has executed this Series [•] Convertible Preferred Stock
certificate as of the date set forth below.



	 	 	 	 	 	 	 
	 	 	THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	 
 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	 
 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Dated:
	 	 
 

	 	  






A-2 









 





REGISTRAR’S COUNTERSIGNATURE




     These are shares of Series [•] Convertible Preferred Stock referred to in the within-mentioned
Articles Supplementary.



[                                        ]

as Registrar,




	 	 	 	 	 
	By:
 

	 	 
	Authorized Signatory	 	 
	 
	 	 	 	 
	Dated:

	 	 
 

	 	 






A-3 









 





REVERSE OF CERTIFICATE




     Dividends on each share of Series [•] Convertible Preferred Stock shall be payable in cash or
Convertible Preferred Stock as provided in the Articles Supplementary.



     The Series [•] Convertible Preferred Stock shall be convertible into Common Stock, in the
manner and in accordance with the terms of the Articles Supplementary.



     The Series [•] Convertible Preferred Stock shall be redeemable at the option of the Holder in
the manner and in accordance with the terms of the Articles Supplementary.



     The Series [•] Convertible Preferred Stock is subject to mandatory redemption by the Company
on August 1, 2016 in the manner and in accordance with the terms of the Articles Supplementary.



A-4 









 





ASSIGNMENT




     FOR VALUE RECEIVED, the undersigned assigns and transfers the Series [•] Convertible Preferred
Stock represented 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 Series [•] Convertible Preferred Stock represented hereby on the books of the
Transfer Agent and Registrar. The Transfer Agent may substitute another to act for him or her.




	 	 	 	 	 
	Date:
 

	 	 
	 
	 	 	 	 
	Signature:

	 	 
 

	 	 





(Sign exactly as your name appears on the other side of this Series [•] Convertible Preferred Stock
certificate)




	 	 	 	 	 
	Signature Guarantee:

	 	 
 

	 	 








 




			
	*	 	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 Transfer Agent and
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
Transfer Agent and Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.





A-5 









 





Exhibit B




FORM OF

RESTRICTED COMMON STOCK LEGEND



THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE
DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT OR
SUCH LAWS.



THE COMPANY IS AUTHORIZED TO ISSUE DIFFERENT CLASSES AND SERIES OF STOCK. THE DESIGNATIONS AND ANY
PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS,
QUALIFICATIONS, AND TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS AND SERIES OF
STOCK AND THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES FOR EACH CLASS AND SERIES OF STOCK
(AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF
FUTURE CLASSES AND SERIES OF STOCK) WILL BE FURNISHED WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS. SUCH REQUEST MUST BE MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE.




B-1 









 





Exhibit C




FORM OF

CERTIFICATE OF TRANSFER FOR CONVERTIBLE PREFERRED STOCK




(Transfers pursuant to Section 24 of the Articles Supplementary)




                                        , as Transfer Agent

[                                        ]

                    , ___[                    ]

Attn: [                                        ]





			
	Re:	 	The Great Atlantic & Pacific Tea Company, Inc.

Convertible Preferred Stock (the “Convertible Preferred Stock”)





     Reference is hereby made to the Articles Supplementary of 8% Cumulative Convertible Preferred
Stock of the Company dated August 3, 2009, as such may be amended from time to time (the “Articles
Supplementary”). Capitalized terms used but not defined herein shall have the respective meanings
given them in the Articles Supplementary.



     This
Letter relates to ___ shares of Convertible Preferred Stock (the “Securities”) which
are held in the name of [name of transferor] (the “Transferor”) to effect the transfer of the
Securities.



     In connection with such request, and in respect of the shares of Convertible Preferred Stock,
the Transferor does hereby certify that the shares of Convertible Preferred Stock are being
transferred in accordance with applicable securities laws of any state of the United States or any
other jurisdiction:



CHECK ONE BOX BELOW:





	 	(1)	 	[ ] to a transferee that the Transferor reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities Act purchasing
for its own account or for the account of a qualified institutional buyer in a
transaction meeting the requirements of Rule 144A;
	 
	 	(2)	 	[ ] pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available);
	 
	 	(3)	 	[ ] outside the United States in a transaction complying with Regulation S
under the Securities Act; or
	 
	 	(4)	 	[ ] in accordance with another exemption from the registration requirements of
the Securities Act (based upon an opinion of counsel if the Company so requests).





     Unless one of the boxes is checked, the Transfer Agent will refuse to register any of the
Securities represented by this certificate in the name of any person other than the registered
holder thereof; provided, however, that if box (2) or (3) is checked, the Transfer Agent shall be
entitled to require, prior to registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144
or Regulation S under such Act.



	 	 	 	 	 	 	 
	 	 	[Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 
 

	 	 
	 

	 	Name:
	 	 
	 

	 	Title:	 	 






Dated:                     





			
	cc:	 	The Great Atlantic & Pacific Tea Company, Inc

[                                        ]

                    , ___ [                    ]

Attn: [                                        ]





C-1 









 





Exhibit D




FORM OF

CERTIFICATE OF TRANSFER FOR COMMON STOCK




(Transfers pursuant to Section 24 of the Articles Supplementary)




                                        , as Transfer Agent

[                                        ]

                    , ___[                    ]

Attn: [                                        ]





			
	Re:	 	The Great Atlantic & Pacific Tea Company, Inc.

Convertible Preferred Stock (the “Convertible Preferred Stock”)





     Reference is hereby made to the Articles Supplementary of 8% Cumulative Convertible Preferred
Stock of the Company dated August 3, 2009, as such may be amended from time to time (the “Articles
Supplementary”). Capitalized terms used but not defined herein shall have the respective meanings
given them in the Articles Supplementary.



     This
Letter relates to ___ shares of Common Stock (the “Securities”) represented by the
accompanying certificate(s) that were issued upon conversion of Convertible Preferred Stock and
which are held in the name of [name of transferor] (the “Transferor”) to effect the transfer of the
Securities.



     In connection with such request and in respect of the shares of Common Stock, the Transferor
does hereby certify that the shares of Common Stock are being transferred in accordance with
applicable securities laws of any state of the United States or any other jurisdiction:



CHECK ONE BOX BELOW:





	 	(1)	 	[ ] to a transferee that the Transferor reasonably believes is a qualified
institutional buyer within the meaning of Rule 144A under the Securities Act purchasing
for its own account or for the account of a qualified institutional buyer in a
transaction meeting the requirements of Rule 144A;
	 
	 	(2)	 	[ ] pursuant to an exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available);
	 
	 	(3)	 	[ ] outside the United States in a transaction complying with Regulation S
under the Securities Act;
	 
	 	(4)	 	[ ] in accordance with another exemption from the registration requirements of
the Securities Act (based upon an opinion of counsel if the Company so requests); or
	 
	 	(5)	 	[ ] pursuant to an effective registration statement under the Securities Act.





     Unless one of the boxes is checked, the Transfer Agent will refuse to register any of the
Securities represented by this certificate in the name of any person other than the registered
holder thereof; provided, however, that if box (2) or (3) is checked, the Transfer Agent shall be
entitled to require, prior to registering any such transfer of the Securities, such legal opinions,
certifications and other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144
or Regulation S under such Act.



	 	 	 	 	 	 	 
	 	 	[Name of Transferor]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

	 	 
	 

	 	Name:
	 	 
	 

	 	Title:	 	 






Dated:                     





			
	cc:	 	The Great Atlantic & Pacific Tea Company, Inc

[                                        ]

                    , ___ [                    ]

Attn: [                                        ]






D-1