**Exhibit 3.2**CERTIFICATE OF INCORPORATIONOFPHELPS DODGE CORPORATION(as amended May 27, 2005)     FIRST: The name of the Corporation is Phelps Dodge Corporation.     SECOND: The objects for which this Corporation is formed are to do any of the things hereinset forth to the same extent as natural born persons might, and in any part of the world and asprincipal or agent, to wit: To conduct mining operations of all kinds; to explore for, develop anddeal in, any natural resources of any kind; to purchase, take, hold, sell, convey, lease, explore,develop, improve or otherwise deal in mining, natural resources, land, town site, building, power,water and other properties of all forms; to mine, extract or otherwise develop minerals, ores,metals, oil and other substances of all kinds; to smelt, reduce and otherwise treat minerals, ores,metals, oil and other substances of all kinds; to sell the product of all the foregoing operations;to undertake and carry on any business and operations incidental to such dealings, exploration,development; mining and treatment.     To apply for, purchase, or otherwise acquire, and to hold, own, use, operate and to sell,assign or to otherwise dispose of, to grant licenses in respect to or otherwise turn to accountletters patent and any and all inventions, improvements and processes used in connection with orsecured under letters patent of the United States or elsewhere, or otherwise.     To build and construct houses, structures, engines, cars, machinery and other equipment, andmining and metallurgical facilities and plants, including plants for the handling, concentrating,smelting, reduction and treatment of minerals, ores, metals, oil and other substances of all kinds,and to operate the same.     To conduct manufacturing operations of all kinds; to manufacture, purchase or otherwiseacquire, hold, own, mortgage, pledge, sell, assign, transfer or otherwise dispose of, invest, tradeand deal in goods, wares and merchandise and property of all classes and descriptions; to transacta general mercantile business.     To act as the agent of others in disposing of their minerals, ores and metals of all kinds orother substances, and to make contracts with others with reference to handling, smelting, treatingand disposing of their minerals, ores and metals of all kinds and other substances.     The Corporation may purchase, acquire, hold and dispose of the stocks, bonds and otherevidences of indebtedness of any corporation, domestic or foreign, and issue in exchange thereforits stock, bonds or other obligations.
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     The Corporation may do everything necessary, suitable and proper for the accomplishment of anyof the purposes or the attainment of any of the objects or the furtherance of any of the powershereinabove set forth, either alone or in association with other corporations, firms orindividuals, and do every other act or thing incidental or appurtenant to or growing out of orconnected with the aforesaid business or powers, or any part thereof.     THIRD: The total number of shares that the Corporation shall have authority to issue shall bethree hundred six million (306,000,000), consisting of six million (6,000,000) Preferred Shareshaving a par value of one dollar per share and three hundred million (300,000,000) Common Shareshaving a par value of six dollars and twenty-five cents ($6.25) per share. The designations,relative rights, preferences and limitations of each class of shares of the Corporation shall be asfollows:     A.      The Preferred Shares may be issued from time to time in one or more series, in such number,and with such distinctive serial designations and relative rights, preferences and limitations, asmay be fixed by the Board of Directors. Subject to the limitations set forth herein and anylimitations prescribed by law, the Board of Directors is expressly authorized, prior to issuance ofany series of Preferred Shares, to fix the number of shares included in such series and thedesignation, relative rights, preferences and limitations of such series and to file a certificateof amendment pursuant to Section 805 of the Business Corporation Law or any statute amendatorythereof or supplemental thereto, establishing or changing the number, designation and relativerights, preferences and limitations of such series. Pursuant to the foregoing general authorityvested in the Board of Directors, but not in limitation of the powers conferred on the Board ofDirectors thereby and by the laws of the State of New York, the Board of Directors is expresslyauthorized to determine with respect to each series of Preferred Shares:     (a)      the distinctive designation or designations of such series and the number ofshares constituting such series;     (b)      the rate or amount and times at which, and the preferences and conditions underwhich, dividends shall be payable on shares of such series, the status of such dividends ascumulative or noncumulative, the date or dates form which dividends, if cumulative, shallaccumulate, and the status of such shares as participating or non-participating after thepayment of dividends as to which such shares are entitled to any preference;     (c)      the rights and preferences, if any, of the holders of shares of such series uponthe liquidation, dissolution or winding-up of the affairs of, or upon any distribution ofthe assets of, the Corporation, which amount may vary depending upon whether suchliquidation, dissolution or winding-up is voluntary or involuntary and, if voluntary, mayvary at different dates, and the status of the shares of such series as participating ornon-participating after the satisfaction of any such rights and preferences;
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     (d)      the full or limited voting rights, if any, to be provided for shares of suchseries, in addition to the voting rights provided by law;     (e)      the times, terms and conditions, if any, upon which shares of such series shall besubject to redemption, including the amount the holders of shares of such series shall beentitled to receive upon redemption (which amount may vary under different conditions or atdifferent redemption dates) and the amount, terms, conditions and manner of operation ofany purchase, retirement or sinking fund to be provided for the shares of such series;     (f)      the rights, if any, of holders of shares of such series to convert such sharesinto, or to exchange such shares for, shares of any other class or classes or of any otherseries of the same class, the prices or rates of conversion or exchange, and adjustmentsthereto, and any other terms and conditions applicable to such conversion or exchange;     (g)      the limitations, if any, applicable while such series is outstanding on thepayment of dividends or making of distributions on, or the acquisition or redemption of,Common Shares or any other class of share ranking junior, either as to dividends or uponliquidation, to the shares of such series;     (h)      the conditions or restrictions, if any, upon the issue of any additional shares(including additional shares of such series or any other series or of any other class)ranking on a parity with or prior to the shares of such series either as to dividends orupon liquidation; and     (i)      any other preferences and relative, participating, optional or other specialrights, and the qualifications, limitations or restrictions thereof, of shares of suchseries;in each case, so far as not inconsistent with the provisions of this Certificate of Incorporationor the laws of the State of New York as then in effect. All Preferred Shares shall be identicaland of equal rank except in respect to the particulars that may be fixed by the Board of Directorsas provided above, and all shares of each series of Preferred Shares shall be identical and ofequal rank except as to the times from which cumulative dividends, if any, thereon shall becumulative. The number of authorized Preferred Shares may be increased or decreased by theaffirmative vote of the holders of a majority of the shares of the Corporation entitled to votethereon, without any requirement that such increase or decrease be approved by a class vote on thepart of the holders of the Preferred Shares or any series thereof, or on the part of any otherclass of stock of the Corporation, except as may be otherwise required by the laws of the State ofNew York or provided in the certificate of amendment establishing the voting rights of any seriesof Preferred Shares. The Board of Directors may from time to time amend any of the provisions ofany certificate of amendment establishing any series of Preferred Shares, subject to any classvoting rights of the holders of such shares and subject to the requirements of the laws of theState of New York.
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     A.1. Junior Participating Cumulative Preferred Shares     The number, designation, relative rights, preferences and limitations of the JuniorParticipating Cumulative Preferred Shares are as follows:     (1) Designation and Number of Shares. 400,000 of the Preferred Shares shallbe, and be designated as, Junior Participating Cumulative Preferred Shares (hereinafterreferred to as the “Junior Preferred Shares”).     (2) Dividends. A. Subject to the provisions of subclauses B and D of thisclause (2), holders of the Junior Preferred Shares shall be entitled to receive, when, asand if declared by the Board of Directors out of funds legally available for the purpose,quarterly dividends payable in cash on the tenth day of March, June, September and Decemberin each year (each such date, which is subject to change pursuant to the provisions ofsubclause D of this clause (2), being hereinafter referred to as a “Quarterly DividendPayment Date”), commencing on the first Quarterly Dividend Payment Date after the firstissuance of a Junior Preferred Share, in an amount per share (rounded to the nearest cent)equal to the greater of (i) $2.50 per share ($10.00 per annum), and (ii)subject to the provision for adjustment hereinafter set forth, 100 times the aggregate pershare amount of all cash dividends, and 100 times the aggregate per share amount (payablein kind) of all non-cash dividends or other distributions, other than a dividend payable inCommon Shares or a subdivision of the outstanding Common Shares (by reclassification orotherwise), declared on the Common Shares since the immediately preceding QuarterlyDividend Payment Date, or, with respect to the first Quarterly Dividend Payment Date, sincethe first issuance of any Junior Preferred Share. In the event the Corporation shall atany time declare or pay any dividend on Common Shares payable in Common Shares, or effect asubdivision or combination or consolidation of the outstanding Common Shares (byreclassification or otherwise than by payment of a dividend in Common Shares) into agreater or lesser number of Common Shares, then the number 100 (or such number to which itmay previously have been adjusted) in subclause (ii) of the preceding sentence shall beadjusted (or further adjusted) by multiplying such number by a fraction the numerator ofwhich is the number of Common Shares outstanding immediately after such event and thedenominator of which is the number of Common Shares that were outstanding immediately priorto such event.     B. Holders of the Junior Preferred Shares shall be entitled to receive such dividendsin preference to and in priority over dividends upon the Common Shares and upon any othershares which are by their terms junior to the Junior Preferred Shares as to dividends.Junior Preferred Shares shall be junior as to dividends to any other Preferred Shares whichare by their terms senior to the Junior Preferred Shares as to dividends, and if at anytime the Corporation has failed to pay accrued dividends on any such other Preferred Sharesat the time outstanding at the times such dividends are payable, the Corporation shall notdeclare or pay any dividends on the Junior Preferred Shares.
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     C. If at any time the Corporation has failed to pay accrued dividends on any JuniorPreferred Shares at the time outstanding at the times such dividends are payable, theCorporation shall not     (i) declare or pay any dividend on the Common Shares or make any payment onaccount of, or set apart money for a sinking or other analogous fund for, thepurchase, redemption or other retirement of any Common Shares or make anydistribution in respect thereof, either directly or indirectly and whether in cashor property or in obligations or shares of the Corporation (other than in CommonShares),     (ii) purchase any Junior Preferred Shares (except for a consideration payablein Common Shares), or     (iii) permit any corporation or other entity directly or indirectlycontrolled by the Corporation to purchase any Common Shares or Junior PreferredShares,unless, in the case of any such dividend, payment, distribution, purchase or redemption,all dividends accrued and payable but unpaid on the Junior Preferred Shares have been orcontemporaneously are declared and paid in full or declared and a sum sufficient for thepayment thereof set aside for such payment.     D. The Corporation shall declare a dividend or distribution on the Junior PreferredShares as provided in subclause A of this clause (2) immediately after it declares adividend or distribution on the Common Shares (other than a dividend payable in CommonShares); provided that, in the event no dividend or distribution shall have been declaredon the Common Shares during the period between any Quarterly Dividend Payment Date and thenext subsequent Quarterly Dividend Payment Date, a dividend of $2.50 per share ($10.00 perannum) on the Junior Preferred Shares shall nevertheless be payable on such subsequentQuarterly Dividend Payment Date. The Board of Directors may change any of the QuarterlyDividend Payment Dates to a different date to coincide with the payment date for a dividendor distribution on the Common Shares.     E. Dividends at the $10.00 minimum annual rate shall begin to accrue and becumulative on outstanding Junior Preferred Shares from the Quarterly Dividend Payment Datenext preceding the date of issue of such Junior Preferred Shares, unless the date of issueof such shares is prior to the record date for the first Quarterly Dividend Payment Date,in which case dividends on such shares shall begin to accrue from the date of issue of suchshares, or unless the date of issue is a Quarterly Dividend Payment Date or is a date afterthe record date for the determination of holders of Junior Preferred Shares entitled toreceive a quarterly dividend and before such Quarterly Dividend Payment Date, in either ofwhich events such dividends shall begin to accrue and be cumulative from such QuarterlyDividend Payment Date. Accrued but unpaid dividends shall accumulate but shall not bearinterest. Dividends paid on the shares of Junior
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Preferred Shares in an amount less than the total amount of such dividends at the timeaccrued and payable on such shares shall be allocated pro rata on a share-by-share basisamong all such shares at the time outstanding. The Board of Directors may fix a recorddate for the determination of holders of Junior Preferred Shares entitled to receivepayment of a dividend or distribution declared thereon, which record date shall be not morethan 50 days prior to the date fixed for the payment thereof.     (3) No Redemption. The Junior Preferred Shares shall not be redeemable.     (4) Liquidation. A. The liquidation price of the Junior Preferred Shares,in case of the voluntary or involuntary liquidation, dissolution or winding-up of theCorporation, shall be an amount per share equal to the greater of (i) $100 and(ii) an aggregate amount (subject to the provisions for adjustment hereinafter setforth) equal to 100 times the aggregate per share amount to be distributed to holders ofCommon Shares. In the event the Corporation shall at any time declare or pay any dividendon Common Shares payable in Common Shares, or effect a subdivision or combination orconsolidation of the outstanding Common Shares (by reclassification or otherwise than bypayment of a dividend in Common Shares) into a greater or lesser number of Common Shares,then the number 100 (or such number to which it may previously have been adjusted) insubclause (ii) of the preceding sentence shall be adjusted (or further adjusted) bymultiplying such number by a fraction the numerator of which is the number of Common Sharesoutstanding immediately after such event and the denominator of which is the number ofCommon Shares that were outstanding immediately prior to such event.     B. In the event of any voluntary or involuntary liquidation, dissolution orwinding-up of the Corporation, the holders of Junior Preferred Shares (i) shall notbe entitled to receive the liquidation price of such shares held by them until theliquidation price of any other Preferred Shares which are by their terms senior to theJunior Preferred Shares as to the distribution of assets on any voluntary or involuntaryliquidation of the Corporation shall have been paid in full and (ii) shall beentitled to receive the liquidation price of such shares held by them in preference to andin priority over any distributions upon the Common Shares and upon any other shares whichare by their terms junior to the Junior Preferred Shares as to the distribution of assetson any voluntary or involuntary liquidation of the Corporation. Upon payment in full ofthe liquidation price to which the holders of Junior Preferred Shares are entitled, theholders of Junior Preferred Shares will not be entitled to any further participation in anydistribution of assets by the Corporation. If the assets of the Corporation are notsufficient to pay in full the liquidation price payable to the holders of Junior PreferredShares, the holders of all such shares shall share pro rata on a share-by-share basis amongall such shares at the time outstanding.     C. Neither a consolidation or merger of the Corporation with or into any othercorporation, nor a merger of any other corporation with or into the
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Corporation, nor a sale or transfer of all or any part of the Corporation’s assets forcash or securities shall be considered a liquidation, dissolution or winding-up of theCorporation within the meaning of this clause (4).     (5) Convertibility. The Junior Preferred Shares shall not be convertibleinto any other securities of the Corporation.     (6) Other Shares. The Junior Preferred Shares do not restrict in any way theissuance of any additional shares (including additional Junior Preferred Shares) ranking ona parity with or prior to the Junior Preferred Shares either as to dividends or uponliquidation or any additional Common Shares or other shares that may be entitled to votewith the Junior Preferred Shares. Any Junior Preferred Shares which are acquired by theCorporation and subsequently cancelled by the Board of Directors shall have the status ofauthorized but unissued Preferred Shares, without designation as to series, subject toreissuance by the Board of Directors as Junior Preferred Shares or of any one or moreseries.     (7) Voting Rights. The holders of Junior Preferred Shares shall have thefollowing voting rights:     A. Subject to the provisions for adjustment hereinafter set forth, each JuniorPreferred Share shall entitle the holder thereof to 100 votes on all matters submitted to avote of shareholders of the Corporation and the holders of Junior Preferred Shares and theholders of Common Shares shall vote together as one class on all such matters. In theevent the Corporation shall at any time declare or pay any dividend on Common Sharespayable in Common Shares, or effect a subdivision or combination or consolidation of theoutstanding Common Shares (by reclassification or otherwise than by payment of a dividendin Common Shares) into a greater or lesser number of Common Shares, then the number 100 inthe preceding sentence (or such number to which it may previously have been adjusted) shallbe adjusted (or further adjusted) by multiplying such number by a fraction the numerator ofwhich is the number of Common Shares outstanding immediately after such event and thedenominator of which is the number of Common Shares that were outstanding immediately priorto such event.     B. Except as otherwise provided herein or required by law, the holders of JuniorPreferred Shares shall have no voting rights for taking any corporate action.     (8) Consolidation, Merger, etc. In case the Corporation shall enter into anyconsolidation, merger, combination or other transaction in which the Common Shares areexchanged for or changed into other stock or securities, cash and/or any other property,then in any such case (subject to the provision for adjustment hereinafter set forth) eachJunior Preferred Share shall at the same time be similarly exchanged for or changed into100 times the aggregate per share amount of stock, securities, cash and/or any otherproperty (payable in kind), as the case may be, for which or into which each Common Shareis exchanged or
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changed. In the event the Corporation shall at any time declare or pay any dividendon Common Shares payable in Common Shares, or effect a subdivision or combination orconsolidation of the outstanding Common Shares (by reclassification or otherwise than bypayment of a dividend in Common Shares) into a greater or lesser number of Common Shares,then the number 100 in the preceding sentence (or such number to which it may previouslyhave been adjusted) shall be adjusted (or further adjusted) by multiplying such number by afraction the numerator of which is the number of Common Shares outstanding immediatelyafter such event and the denominator of which is the number of Common Shares that wereoutstanding immediately prior to such event.     (9) Definition of “Common Shares”. As used in this Paragraph A.1 of thisCertificate of Incorporation, the term “Common Shares” shall mean the Common Shares of theCorporation having a par value of six dollars and twenty-five cents ($6.25) per share, assuch shares may be changed through any subdivision, combination or consolidation thereof.     B. Except as otherwise provided by the laws of the State of New York or by any certificate ofamendment filed pursuant to Paragraph A of this Article THIRD, setting forth the relative rights,preferences and limitations of any series of Preferred Shares, the entire voting power of theshares of the Corporation for the election of Directors and for all other purposes, as well as allother rights appertaining to shares of the Corporation, shall be vested exclusively in the CommonShares. Each Common Share shall have one vote upon all matters to be voted on by the holders ofthe Common Shares, and shall be entitled to participate equally in all dividends payable withrespect to the Common Shares and to share ratably, subject to the rights and preferences of anysuch Preferred Shares, in all assets of the Corporation in the event of any voluntary orinvoluntary liquidation, dissolution or winding-up of the affairs of the Corporation.     C. No present or future holder of any shares of the Corporation, whether heretofore orhereafter issued, shall have any preemptive rights with respect to (a) any shares of theCorporation or (b) any other securities of the Corporation (including bonds and debentures)convertible into or carrying rights or options to purchase any shares of the Corporation.     A.2.  6.75% Series A Mandatory Convertible Preferred Shares     The number, designation, relative rights, preferences and limitations of the 6.75% Series AMandatory Convertible Preferred Shares are as follows (certain capitalized terms being herein usedas defined in Paragraph (10) below):     1. Designation and Number of Shares. Out of the 6,000,000 preferred shares of theCorporation authorized by the Restated Certificate of Incorporation of the Corporation, 2,000,000shall be, and be designated as, 6.75% Series A Mandatory Convertible Preferred Shares (hereinafterreferred to as “this Series”) having a par value of $1.00 per share.
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     2. Ranking. This Series shall rank, with respect to dividend distributions anddistributions upon the liquidation, winding-up and dissolution of the Corporation (i)senior to (a) the Common Shares, par value $6.25 per share, of the Corporation (the “CommonShares”), (b) the Junior Participating Cumulative Preferred Shares, par value $1.00 per share,of the Corporation, and (c) to each other class or series of stock of the Corporation (includingany series of preferred stock established after June 6, 2002 by the Board of Directors) the termsof which do not expressly provide that it ranks senior to or on a parity with this Series as todividend distributions and distributions upon the liquidation, winding-up or dissolution of theCorporation and (ii) junior to any equity security, the terms of which expressly providethat such class or series will rank senior to this Series as to dividend distributions anddistributions upon liquidation, winding-up or dissolution of the Corporation.     3. Dividends.     General. The dividend rate on shares of this Series shall be $6.75 per annum,provided, that the initial dividend on this Series for the dividend periodcommencing on June 12, 2002, to but excluding August 15, 2002, will be$1.1813 per share, in each case subject to adjustment as provided in Section 12(ii).Cumulative cash dividends shall be payable quarterly when, as and if declared by the Boardof Directors of the Corporation or a duly authorized committee thereof, out of the assetsof the Corporation legally available therefor on the fifteenth calendar day (or thefollowing business day if the fifteenth is not a business day) of August, November,February and May (each such date being referred to herein as a “Dividend PaymentDate”), provided, that the initial dividend shall be payable, if declared, onAugust 15, 2002. The amount of dividends payable on each share of this Series for eachquarterly period thereafter shall be computed by dividing the annual dividend rate by four.The amount of dividends payable for any other period that is shorter or longer than adividend period will be computed on the basis of a 360-day year consisting of twelve 30-daymonths.     A dividend period is the period ending on the day before a Dividend Payment Date andbeginning on the preceding Dividend Payment Date or, if none, the date of issue. Dividendspayable, if declared, on a Dividend Payment Date shall be payable to Holders (as definedbelow) of record as they appear on the stock register of the Corporation on the recorddate, which shall be the close of business on the first calendar day (or the precedingbusiness day if the first is not a business day) of the calendar month in which theapplicable Dividend Payment Date falls (each, a “Dividend Record Date”).     Dividends on this Series shall be cumulative if the Corporation fails to declare orpay one or more dividends on this Series in any amount, whether or not the earnings orfinancial condition of the Corporation were sufficient to pay such dividends in whole or inpart.
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     Holders of shares of this Series shall not be entitled to any dividend, whetherpayable in cash, property or stock, in excess of the then applicable full dividendscalculated pursuant to Section 3(i) hereof (including accrued dividends, if any) on sharesof this Series. No interest or sum of money in lieu of interest shall be payable inrespect of any dividend or payment which may be in arrears.     Dividends in arrears on this Series not declared for payment or paid on any DividendPayment Date may be declared by the Board of Directors of the Corporation or a dulyauthorized committee thereof and paid on any date fixed by the Board of Directors of theCorporation or a duly authorized committee thereof, whether or not a Dividend Payment Date,to the Holders of record of the shares of this Series, as they appear on the stock registerof the Corporation on a record date selected by the Board of Directors of the Corporationor a duly authorized committee thereof, which shall be not more than 60 days prior to suchfixed dividend payment date.     Payment Restrictions. The Corporation may not declare or pay any dividend ormake any distribution of assets (other than dividends paid or other distributions made incapital stock of the Corporation ranking junior to this Series as to the payment ofdividends and the distribution of assets upon liquidation, dissolution or winding up) on,or redeem, purchase or otherwise acquire (except upon conversion or exchange for capitalstock of the Corporation ranking junior to this Series as to the payment of dividends andthe distribution of assets upon liquidation, dissolution or winding up), the Corporation’sCommon Shares or any other stock of the Corporation ranking junior to this Series as to thepayment of dividends and the distribution of assets upon liquidation, dissolution orwinding up, unless all accrued and unpaid dividends on this Series for all prior dividendperiods have been or contemporaneously are declared and paid and the full quarterlydividend on this Series for the current dividend period has been or contemporaneously isdeclared and set apart for payment.     Whenever all accrued and unpaid dividends on this Series for all prior dividendperiods are not paid in full, the Corporation may not redeem, purchase or otherwise acquire(except upon conversion or exchange for capital stock of the Corporation ranking junior tothis Series as to the payment of dividends and the distribution of assets upon liquidation,dissolution or winding up) other capital stock of the Corporation then outstanding rankingon a parity with this Series as to the payment of dividends and the distribution of assetsupon liquidation, dissolution or winding up, including this Series.     4. Liquidation Preference.     In the event of any voluntary or involuntary liquidation, dissolution or winding up of theCorporation, the Holders of shares of this Series shall be entitled to receive out of the assets ofthe Corporation legally available for distribution to shareholders, before any distribution ofassets is made on the Common Shares of the Corporation or any other class or series of stock of theCorporation ranking junior to this Series as to the payment
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of dividends and the distribution of assets upon liquidation, dissolution or winding up aliquidating distribution, in the amount of $100.00 per share, subject to adjustment as provided inSection 12(ii) hereof, plus an amount equal to the sum of all accrued and unpaid dividends (whetheror not earned or declared) for the portion of the then-current dividend period until the paymentdate and all dividend periods prior thereto.     Neither the sale nor transfer of all or substantially all of the property or business of theCorporation, nor the merger, conversion or consolidation of the Corporation into or with any othercorporation, nor the merger, conversion or consolidation of any other corporation into or with theCorporation shall constitute a liquidation, dissolution or winding up, voluntary or involuntary,for the purposes of the foregoing paragraph. After the payment to the Holders of the shares ofthis Series of the full preferential amounts provided for above, the Holders of the shares of thisSeries as such shall have no right or claim to any of the remaining assets of the Corporation.     In the event the assets of the Corporation available for distribution to the Holders of theshares of this Series upon any liquidation, dissolution or winding up of the Corporation, whethervoluntary or involuntary, shall be insufficient to pay in full all amounts to which such Holdersare entitled as provided above, no such distribution shall be made on account of any other stock ofthe Corporation ranking on a parity with this Series as to the distribution of assets upon suchliquidation, dissolution or winding up, unless a pro rata distribution is made on this Series andsuch other stock of the Corporation, with the amount allocable to each series of such stockdetermined on the basis of the aggregate liquidation preference of the outstanding shares of eachseries and distributions to the shares of each series being made on a pro rata basis.     5. Voting Rights.     The Holders of shares of this Series shall have no voting rights, except as set forthbelow or as expressly required by applicable law. In exercising any such vote, eachoutstanding share of this Series shall be entitled to one vote.     If the equivalent of six quarterly dividends payable, whether consecutively or not, onthis Series or any other class or series of preferred stock ranking on a parity with thisSeries as to the payment of dividends and the distribution of assets upon liquidation,dissolution or winding up, has not been paid, the number of directors of the Corporationshall be increased by two (without duplication of any increase, resulting from the samefailure to pay dividends, made pursuant to the terms of any other series of preferred stockof the Corporation ranking on a parity with this Series as to payment of dividends and thedistribution of assets upon liquidation, dissolution or winding up), and the Holders ofthis Series, voting as a single class with the holders of shares of any other class of thepreferred stock of the Corporation ranking on a parity with this Series as to the paymentof dividends and the distribution of assets upon liquidation, dissolution or winding up andupon which like voting rights have been conferred and are exercisable (this Series,together with such other class or classes, the “Electing Preferred Shares”), shallhave the exclusive right to vote for and to elect such two directors
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at any meeting of shareholders of the Corporation at which directors are to be electedheld during the period such dividends remain in arrears. Each class or series of preferredstock entitled to vote for the additional directors shall have a number of votesproportionate to the aggregate liquidation preference of its outstanding shares. Suchvoting right shall continue until full cumulative dividends for all past dividend periodson all such preferred stock of the Corporation, including any shares of this Series, havebeen paid or declared and set apart for payment. Any such elected directors shall serveuntil the Corporation’s next annual meeting of shareholders (notwithstanding that prior tothe end of such term the right to elect directors shall cease to exist) or until theirrespective successors shall be elected and qualify.     Whenever such exclusive voting right shall vest, it may be exercised initially eitherat a special meeting of Holders of Electing Preferred Shares or at any annual shareholders’meeting, but thereafter it shall be exercised only at annual shareholders’ meetings. Anydirector who shall have been elected by the Holders of Electing Preferred Shares as a classpursuant to this Section 5 may be removed at any time, either for or without cause by, andonly by, the affirmative votes of the Holders of record of a majority of the outstandingshares of Electing Preferred Shares given at a special meeting of such shareholders calledfor such purpose, and any vacancy created by such removal may also be filled at suchmeeting. Any vacancy caused by the death or resignation of a director who shall have beenelected by the Holders of Electing Preferred Shares as a class pursuant to this Section 5may be filled only by the Holders of outstanding Electing Preferred Shares at a meetingcalled for such purpose.     Any meeting of the Holders of outstanding Electing Preferred Shares entitled to voteas a class for the election or removal of directors shall be held at the place at which thelast annual meeting of shareholders was held. At such meeting, the presence in person or byproxy of the Holders of a majority of the outstanding shares of all outstanding ElectingPreferred Shares shall be required to constitute a quorum; in the absence of a quorum, amajority of the Holders present in person or by proxy shall have the power to adjourn themeeting from time to time without notice, other than announcement at the meeting, until aquorum shall be present.     So long as any shares of this Series is outstanding, the affirmative vote or consentof the Holders of at least 66 2/3% of the outstanding shares of this Series will berequired for any amendment of the Restated Certificate of Incorporation of the Corporation(or any certificate supplemental thereto) that will adversely affect the powers,preferences, privileges or rights of this Series. The affirmative vote or consent of theHolders of at least 66 2/3% of the outstanding shares of this Series and any other seriesof the preferred stock of the Corporation ranking on a parity with this Series as topayment of dividends and the distribution of assets upon liquidation, dissolution orwinding up, voting as a single class without regard to series, will be required (a)to issue, authorize or increase the authorized amount of, or issue or authorize anyobligation or security convertible into or
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evidencing a right to purchase, any additional class or series of stock ranking priorto this Series as to payment of dividends and the distribution of assets upon liquidation,dissolution or winding up, (b) to reclassify any authorized stock of theCorporation into any class or series of stock or any obligation or security convertibleinto or evidencing a right to purchase such stock ranking prior to this Series;provided that such vote will not be required for the Corporation to issue,authorize or increase the authorized amount of, or issue or authorize any obligation orsecurity convertible into or evidencing a right to purchase, any stock ranking on a paritywith or junior to this Series as to payment of dividends and the distribution of assetsupon liquidation, dissolution or winding up.     6. Automatic Conversion.     Each share of this Series will automatically convert (unless previously converted at theoption of the Holder in accordance with Section 7, or a Merger Early Settlement has occurred inaccordance with Section 8), on August 15, 2005 (the “Conversion Date”), into a number ofnewly issued Common Shares equal to the Conversion Rate (as defined in Section 9 below). Dividendson the shares of this Series shall cease to accrue and such shares of this Series shall cease to beoutstanding on the Conversion Date. The Corporation shall make such arrangements as it deemsappropriate for the issuance of certificates, if any, representing Common Shares, and for thepayment of cash in respect of accrued and unpaid dividends (whether or not earned or declared) onthis Series, if any, or cash in lieu of fractional Common Shares, if any, in exchange for andcontingent upon surrender of certificates representing the shares of this Series (if such sharesare held in certificated form), and the Corporation may defer the payment of dividends on suchCommon Shares and the voting thereof until, and make such payment and voting contingent upon, thesurrender of such certificates representing the shares of this Series, provided that theCorporation shall give the Holders of the shares of this Series such notice of any such actions asthe Corporation deems appropriate and upon such surrender such Holders shall be entitled to receivesuch dividends declared and paid on such Common Shares subsequent to the Conversion Date. Amountspayable in cash in respect of the shares of this Series or in respect of such Common Shares shallnot bear interest. Transfer or similar taxes in connection with the issuance of Common Shares toany person other than the Holder will be paid by the Holder.     7. Early Conversion at the Option of the Holder.     Shares of this Series are convertible, in whole or in part, at the option of theHolders thereof (“Optional Conversion”), at any time prior to the Conversion Date,into Common Shares at a rate of 2.083 Common Shares for each share of this Series (the“Optional Conversion Rate”), subject to adjustment as set forth in Section 9(ii)below (as though references in Section 9(ii) to the Conversion Rate were replaced withreferences to the Optional Conversion Rate).     Optional Conversion of shares of this Series may be effected by deliveringcertificates evidencing such shares (if such shares are held in certificated form),together with written notice of conversion and a proper assignment of such
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certificates to the Corporation or in blank (and, if applicable, payment of an amountequal to the dividend payable on such shares), to the office of the Transfer Agent (asdefined below) for this Series or to any other office or agency maintained by theCorporation for that purpose and otherwise in accordance with Optional Conversionprocedures established by the Corporation. Each Optional Conversion shall be deemed tohave been effected immediately prior to the close of business on the date on which theforegoing requirements shall have been satisfied.     Holders of shares of this Series at the close of business on a Dividend Record Dateshall be entitled to receive the dividend payable on such shares on the correspondingDividend Payment Date notwithstanding the Optional Conversion of such shares following suchDividend Record Rate and prior to such Dividend Payment Date. However, shares of thisSeries surrendered for Optional Conversion after the close of business on a Dividend RecordDate and before the opening of business on the next succeeding Dividend Payment Date mustbe accompanied by payment in cash of an amount equal to the dividend payable on such shareson such Dividend Payment Date. Except as provided above, upon any Optional Conversion ofshares of this Series, the Corporation shall make no payment or allowance for unpaidpreferred dividends, whether or not in arrears, on such shares of this Series as to whichOptional Conversion has been effected or for dividends or distributions on the CommonShares issued upon such Optional Conversion.     8. Early Conversion Upon Cash Merger.     In the event of a merger or consolidation of the Corporation of the type described inSection 9(iii) in which the Common Shares outstanding immediately prior to such merger orconsolidation are exchanged for consideration consisting of at least 30% cash or cashequivalents (any such event, a “Cash Merger”), then the Corporation (or thesuccessor to the Corporation hereunder) shall be required to offer the Holder of each shareof this Series the right to convert shares of this Series prior to the Conversion Date(“Merger Early Settlement”) as provided herein. On or before the fifth BusinessDay after the consummation of a Cash Merger, the Corporation or, at the request and expenseof the Corporation, the Transfer Agent, shall give all Holders notice of the occurrence ofthe Cash Merger and of the right of Merger Early Settlement arising as a result thereof.The Corporation shall also deliver a copy of such notice to the Transfer Agent. Each suchnotice shall contain:     the date, which shall be not less than 20 nor more than 30 calendar days after thedate of such notice, on which the Merger Early Settlement will be effected (the “MergerEarly Settlement Date”);     the date, which shall be on or one Business Day prior to the Merger Early SettlementDate, by which the Merger Early Settlement right must be exercised;
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     the Conversion Rate in effect immediately before such Cash Merger and the kind andamount of securities, cash and other property receivable by the Holder upon conversion ofshares of this Series pursuant to Section 9(iii); and     the instructions a Holder must follow to exercise the Merger Early Settlement right.     To exercise a Merger Early Settlement right, a Holder shall deliver to the TransferAgent at the Corporate Trust Office (as defined below) by 5:00 p.m., New York City time onor one Business Day before the date by which the Merger Settlement right must be exercisedas specified in the notice, the certificate(s) (if such shares are held in certificatedform) evidencing the shares of this Series with respect to which the Merger EarlySettlement right is being exercised duly endorsed for transfer to the Corporation or inblank with a written notice to the Corporation stating the Holder’s intention to convertearly in connection with the Cash Merger and providing the Corporation with paymentinstructions.     On the Merger Early Settlement Date, the Corporation shall deliver or cause to bedelivered the net cash, securities and other property to be received by such exercisingHolder determined by assuming the Holder had converted, immediately before the Cash Mergerat the Conversion Rate (as adjusted pursuant to Section 9(ii)), the shares of this Seriesfor which such Merger Early Settlement right was exercised into Common Shares. In the eventa Merger Early Settlement right shall be exercised by a Holder in accordance with the termshereof, all references herein to Conversion Date shall be deemed to refer to such MergerEarly Settlement Date.     Upon a Merger Early Settlement, the Transfer Agent shall, in accordance with theinstructions provided by the Holder thereof on the notice provided to the Corporation asset forth in paragraph (ii) above deliver to the Holder such net cash, securitiesor other property issuable upon such Merger Early Settlement together with payment in lieuof any fraction of a share, as provided herein.     In the event that Merger Early Settlement is effected with respect to shares of thisSeries representing less than all the shares of this Series held by a Holder, upon suchMerger Early Settlement the Corporation (or the successor to the Corporation hereunder)shall execute and the Transfer Agent shall authenticate, countersign and deliver to theHolder thereof, at the expense of the Corporation, a certificate evidencing the shares asto which Merger Early Settlement was not effected.     9. Definition of Conversion Rate; Anti-dilution Adjustments.     The “Conversion Rate” is equal to (a) if the Average Market Price (as definedbelow) is greater than or equal to $48.00 (the “Threshold Appreciation Price”),2.083 Common Shares per share of this Series, (b) if the Average Market Price isless than the Threshold Appreciation Price, but is greater than $40.00, the
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number of Common Shares per share of this Series that equals $100.00 (the “StatedAmount”) divided by the Average Market Price, and (c) if the Average MarketPrice is equal to or less than $40.00, 2.5 Common Shares per share of this Series. In eachcase subject to adjustment as provided in Section 9(ii) (and in each case rounded upward ordownward to the nearest 1/10,000th of a share).     In connection with the Conversion Rate as set forth in Section 9(i), the formula fordetermining the Conversion Rate and the number of Common Shares to be delivered on an earlyconversion as set forth in Sections 7 or 8 shall be subject to the following adjustments:     Stock Dividends. In case the Corporation shall pay or make a dividend orother distribution on the Common Shares in Common Shares, the Conversion Rate, as in effectat the opening of business on the day following the date fixed for the determination ofshareholders entitled to receive such dividend or other distribution shall be increased bydividing such Conversion Rate by a fraction of which the numerator shall be the number ofCommon Shares outstanding at the close of business on the date fixed for such determinationand the denominator shall be the sum of such number of shares and the total number ofshares constituting such dividend or other distribution, such increase to become effectiveimmediately after the opening of business on the day following the date fixed for suchdetermination.     Stock Purchase Rights. In case the Corporation shall issue (other thanpursuant to a dividend reinvestment, share purchase or similar plan) rights, options orwarrants to all holders of its Common Shares (not being available on an equivalent basis toHolders of the shares of this Series upon conversion) entitling them to subscribe for orpurchase Common Shares at a price per share less than the Current Market Price (as definedbelow) per share of the Common Shares on the date fixed for the determination ofshareholders entitled to receive such rights, options or warrants, the Conversion Rate ineffect at the opening of business on the day following the date fixed for suchdetermination shall be increased by dividing such Conversion Rate by a fraction, thenumerator of which shall be the number of Common Shares outstanding at the close ofbusiness on the date fixed for such determination plus the number of Common Shares whichthe aggregate of the offering price of the total number of Common Shares so offered forsubscription or purchase would purchase at such Current Market Price and the denominator ofwhich shall be the number of Common Shares outstanding at the close of business on the datefixed for such determination plus the number of Common Shares so offered for subscriptionor purchase, such increase to become effective immediately after the opening of business onthe day following the date fixed for such determination.     Stock Splits; Reverse Splits. In case outstanding Common Shares shall besubdivided or split into a greater number of Common Shares, the Conversion Rate in effectat the opening of business on the day following the day upon which such subdivision orsplit becomes effective shall be proportionately increased, and,
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conversely, in case outstanding Common Shares shall each be combined into a smallernumber of Common Shares, the Conversion Rate in effect at the opening of business on theday following the day upon which such combination becomes effective shall beproportionately reduced, such increase or reduction, as the case may be, to becomeeffective immediately after the opening of business on the day following the day upon whichsuch subdivision, split or combination becomes effective.     Debt or Asset Distributions. (1) In case the Corporation shall, by dividendor otherwise, distribute to all holders of its Common Shares evidences of its indebtednessor assets (including securities, but excluding any rights, options or warrants referred toin paragraph (b) of this Section 9(ii), any dividend or distribution paidexclusively in cash and any dividend, shares of capital stock of any class or series, orsimilar equity interests, of or relating to a subsidiary or other business unit in the caseof a Spin-Off referred to in the next subparagraph, or distribution referred to inparagraph (a) of this Section 9(ii)), the Conversion Rate shall be increased bydividing the Conversion Rate in effect immediately prior to the close of business on thedate fixed for the determination of shareholders entitled to receive such distribution by afraction, the numerator of which shall be the Current Market Price per share of the CommonShares on the date fixed for such determination less the then fair market value (asdetermined by the Board of Directors, whose determination shall be conclusive and describedin a Board Resolution filed with the Transfer Agent) of the portion of the assets orevidences of indebtedness so distributed applicable to one Common Share and the denominatorof which shall be such Current Market Price per Common Share, such adjustment to becomeeffective immediately prior to the opening of business on the day following the date fixedfor the determination of shareholders entitled to receive such distribution. In any casein which this subparagraph (d)(1) is applicable, subparagraph (d)(2) ofthis Section 9(ii) shall not be applicable.     (2) In the case of a Spin-Off, the Conversion Rate in effect immediately before theclose of business on the record date fixed for determination of shareholders entitled toreceive that distribution will be increased by multiplying the Conversion Rate by afraction, the numerator of which is the Current Market Price per Common Share plus the FairMarket Value (as defined below) of the portion of those shares of Capital Stock or similarequity interests so distributed applicable to one Common Share and the denominator of whichis the Current Market Price per Common Share. Any adjustment to the Conversion Rate underthis subparagraph (d)(2) will occur at the earlier of (A) the tenth TradingDay from, and including the effective date of, the Spin-Off and (B) the date of thesecurities being offered in the Initial Public Offering of the Spin-Off, if that InitialPublic Offering is effected simultaneously with the Spin-Off.     Cash Distributions. In case the Corporation shall (1) by dividend orotherwise, distribute to all holders of its Common Shares cash (excluding any cash that isdistributed in a Reorganization Event to which Section 9(iii) applies or as part of adistribution referred to in paragraph (d) of this Section 9(ii)) in an
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aggregate amount that combined together with (2) the aggregate amount of any otherdistributions to all holders of its Common Shares made exclusively in cash within the 12months preceding the date of payment of such distribution and in respect of which noadjustment pursuant to this paragraph (e) or paragraph (f) of this Section9(ii) has been made and (3) the aggregate of any such cash plus the fair market value, asof the date of the expiration of the tender or exchange offer referred to below (asdetermined by the Board of Directors, whose determination shall be conclusive and describedin a Board Resolution), of the consideration payable in respect of any tender or exchangeoffer by the Corporation or any of its subsidiaries for all or any portion of the CommonShares concluded within the 12 months preceding the date of payment of the distributiondescribed in clause (1) of this paragraph (e) and in respect of which no adjustmentpursuant to this paragraph (e) or paragraph (f) of this Section 9(ii) hasbeen made, exceeds 15% of the product of the Current Market Price (as defined below) perCommon Share on the date for the determination of Holders of Common Shares entitled toreceive such distribution times the number of Common Shares outstanding on such date, thenand in each such case, immediately after the close of business on such date fordetermination, the Conversion Rate shall be increased so that the same shall equal the ratedetermined by dividing the Conversion Rate in effect immediately prior to the close ofbusiness on the date fixed for determination of the shareholders entitled to receive suchdistribution by a fraction (A) the numerator of which shall be equal to the CurrentMarket Price per Common Share on the date fixed for such determination less an amount equalto the quotient of (x) the combined amount distributed or payable in thetransactions described in clauses (1), (2) and (3) of this paragraph (e) and(y) the number of Common Shares outstanding on such date for determination and(B) the denominator of which shall be equal to the Current Market Price per CommonShare on such date for determination.     Tender Offers. In case (1) a tender or exchange offer made by the Corporationor any subsidiary of the Corporation for all or any portion of the Common Shares shallexpire and such tender or exchange offer (as amended upon the expiration thereof) shallrequire the payment to holders (based on the acceptance (up to any maximum specified in theterms of the tender or exchange offer) of Purchased Shares (as defined below)) of anaggregate consideration having a fair market value (as determined by the Board ofDirectors, whose determination shall be conclusive and described in a Board Resolution)that combined together with (2) the aggregate of such payment plus the fair market value(as determined by the Board of Directors, whose determination shall be conclusive anddescribed in a Board Resolution), as of the expiration of such tender or exchange offer, ofconsideration payable in respect of any other tender or exchange offer by the Corporationor any subsidiary of the Corporation for all or any portion of the Common Shares expiringwithin the 12 months preceding the expiration of such tender or exchange offer and inrespect of which no adjustment pursuant to paragraph (e) of this Section 9(ii) orthis paragraph (f) has been made and (3) the aggregate amount of any distributionsto all Holders of the Corporation’s Common Shares made exclusively in cash within the 12months
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preceding the expiration of such tender or exchange offer and in respect of which noadjustment pursuant to paragraph (e) of this Section 9(ii) or this paragraph(f) has been made, exceeds 15% of the product of the Current Market Price perCommon Share as of the last time (the “Expiration Time”) tenders could have beenmade pursuant to such tender or exchange offer (as it may be amended) times the number ofCommon Shares outstanding (including any tendered shares) on the Expiration Time, then, andin each such case, immediately prior to the opening of business on the day after the dateof the Expiration Time, the Conversion Rate shall be adjusted so that the same shall equalthe rate determined by dividing the Conversion Rate immediately prior to the close ofbusiness on the date of the Expiration Time by a fraction (A) the numerator ofwhich shall be equal to (x) the product of (I) the Current Market Price perCommon Share on the date of the Expiration Time and (II) the number of CommonShares outstanding (including any tendered shares) on the Expiration Time less (y)the amount of cash plus the fair market value (determined as aforesaid) of the aggregateconsideration payable to shareholders based on the transactions described in clauses (1),(2) and (3) of this paragraph (f) (assuming in the case of clause (1) theacceptance, up to any maximum specified in the terms of the tender or exchange offer, ofPurchased Shares), and (B) the denominator of which shall be equal to the productof (x) the Current Market Price per Common Share as of the Expiration Time and(y) the number of Common Shares outstanding (including any tendered shares) as ofthe Expiration Time less the number of all shares validly tendered and not withdrawn as ofthe Expiration Time (the shares deemed so accepted, up to any such maximum, being referredto as the “Purchased Shares”).     Reclassification. The reclassification of Common Shares into securitiesincluding securities other than Common Shares (other than any reclassification upon aReorganization Event to which Section 9(iii) applies) shall be deemed to involve (1) adistribution of such securities other than Common Shares to all Holders of Common Shares(and the effective date of such reclassification shall be deemed to be “the date fixed forthe determination of shareholders entitled to receive such distribution” and the “datefixed for such determination” within the meaning of paragraph (d) of this Section9(ii)), and (2) a subdivision, split or combination, as the case may be, of the number ofCommon Shares outstanding immediately prior to such reclassification into the number ofCommon Shares outstanding immediately thereafter (and the effective date of suchreclassification shall be deemed to be “the day upon which such subdivision or splitbecomes effective” or “the day upon which such combination becomes effective,” as the casemay be, and “the day upon which such subdivision, split or combination becomes effective”within the meaning of paragraph (c) of this Section 9(ii)).     Calculation of Adjustments. All adjustments to the Conversion Rate shall becalculated to the nearest 1/10,000th of a Common Share (or if there is not a nearest1/10,000th of a share to the next lower 1/10,000th of a share). No adjustment in theConversion Rate shall be required unless such adjustment would require an increase ordecrease of at least one percent therein; provided, that any
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adjustments which by reason of this subparagraph are not required to be made shall becarried forward and taken into account in any subsequent adjustment. If an adjustment ismade to the Conversion Rate pursuant to paragraph (a), (b), (c),(d), (e), (f), (g) or (i) of this Section 9(ii), anadjustment shall also be made to the Average Market Price solely to determine which ofclauses (a), (b) or (c) of the definition of Conversion Rate willapply on the Conversion Date. Such adjustment shall be made by multiplying the AverageMarket Price by a fraction, the numerator of which shall be the Conversion Rate immediatelyafter such adjustment pursuant to paragraph (a), (b), (c)(d), (e), (f), (g) or (i) of this Section 9(ii) andthe denominator of which shall be the Conversion Rate immediately before such adjustment;provided, that if such adjustment to the Conversion Rate is required to be madepursuant to the occurrence of any of the events contemplated by paragraph (a),(b), (c), (d), (e), (f) or (g) of this Section9(ii) during the period taken into consideration for determining the Average Market Price,appropriate and customary adjustments shall be made to the Conversion Rate.     Increase of Conversion Rate. The Corporation may make such increases in theConversion Rate, in addition to those required by this Section 9(ii), as it considers to beadvisable in order to avoid or diminish any income tax to any Holders of Common Sharesresulting from any dividend or distribution of stock or issuance of rights or warrants topurchase or subscribe for stock or from any event treated as such for income tax purposesor for any other reasons. The Corporation shall have the power to resolve any ambiguity orcorrect any error in this Section 9(ii) and its action in so doing, as evidenced by aresolution of the Board of Directors, shall be final and conclusive.     Notice of Adjustment. Whenever the Conversion Rate is adjusted in accordancewith Section 9(ii), the Corporation shall: (i) forthwith compute the ConversionRate in accordance with Section 9(ii), and prepare and transmit to the Transfer Agent anOfficer’s Certificate setting forth the Conversion Rate, the method of calculation thereofin reasonable detail, and the facts requiring such adjustment and upon which suchadjustment is based; and (ii) as soon as practicable following the occurrence of anevent that requires an adjustment to the Conversion Rate pursuant to Sections 9(ii) (or ifthe Corporation is not aware of such occurrence, as soon as practicable after becoming soaware) provide a written notice to the Holders of this Series of the occurrence of suchevent and a statement setting forth in reasonable detail the method by which the adjustmentto the Conversion Rate was determined and setting forth the adjusted Conversion Rate.     (iii) In the event of:     any consolidation or merger of the Corporation with or into another person(other than a merger or consolidation in which the Corporation is the survivingcorporation and in which the Common Shares outstanding immediately prior to themerger or consolidation are not
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exchanged for cash, securities or other property of the Corporation or anothercorporation); or     any sale, transfer, lease or conveyance to another person of the property ofthe Corporation as an entirety or substantially as an entirety; or     any statutory exchange of securities of the Corporation with another person(other than in connection with a merger or acquisition) (any such event, a“Reorganization Event”)each share of this Series immediately prior to such Reorganization Event shall, after suchReorganization Event, be converted into a right to receive the kind and amount ofsecurities, cash and other property receivable in such Reorganization Event per share ofthis Series (without any interest thereon, and without any right to dividends ordistribution thereon that have a record date that is prior to the Conversion Date) by aHolder of Common Shares that (1) is not a person with which the Corporation consolidated orinto which the Corporation merged or which merged into the Corporation or to which suchsale or transfer was made, as the case may be (any such person, a “ConstituentPerson”), or an Affiliate (as defined below) of a Constituent Person to the extent suchReorganization Event provides for different treatment of Common Shares held by Affiliatesof the Corporation and non-Affiliates, and (2) failed to exercise his rights of election,if any, as to the kind or amount of securities, cash and other property receivable uponsuch Reorganization Event (provided that if the kind or amount of securities, cash andother property receivable upon such Reorganization Event is not the same for each CommonShare held immediately prior to such Reorganization Event by other than a ConstituentPerson or an Affiliate thereof and in respect of which such rights of election shall nothave been exercised (“Non-electing Share”), then for the purpose of this Section9(iii) the kind and amount of securities, cash and other property receivable upon suchReorganization Event by each Non-electing Share shall be deemed to be the kind and amountso receivable per share by a plurality of the Non-electing Shares). On the Conversion Datethe Conversion Rate then in effect will be applied to the value on the Conversion Date ofsuch securities, cash or other property in a manner as nearly as equivalent as possible tothe adjustment that would have been made with respect to each Common Share held immediatelyprior to the Reorganization Event.     In the event of such a Reorganization Event, the person formed by such consolidation,merger or exchange or the person which acquires the assets of the Corporation shall executeand deliver to the Transfer Agent an agreement supplemental hereto providing that theHolder of each share of this Series shall have the rights provided by this Section 9(iii).Such supplemental agreement shall provide for adjustments which, for events subsequent tothe effective date of such supplemental agreement, shall be as nearly equivalent as may bepracticable to the adjustments provided for in this Section 9(iii). The above provisionsof this Section 9(iii) shall similarly apply to successive Reorganization Events.
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     10. Definitions.     “Affiliate” has the same meaning as given to that term in Rule 405 of theSecurities Act of 1933, as amended, or any successor rule thereunder.     The “Average Market Price” means the average of the Closing Prices (as definedbelow) per Common Share on each of the 20 consecutive Trading Days (as defined below)ending on the third Trading Day immediately preceding the Conversion Date.     “Business Day” means any day other than a Saturday or Sunday or any other dayon which banks in The City of New York are authorized or required by law or executive orderto close.     The “Closing Price” of the Common Shares or any securities distributed in aSpin-Off, as the case may be, on any date of determination means the closing sale price(or, if no closing price is reported the last reported sale price) per share on the NewYork Stock Exchange (“NYSE”) on such date or, if such security is not quoted fortrading on NYSE on any such date, as reported in the composite transactions for theprincipal United States securities exchange on which such security is so listed or quoted,or if such security is not so listed or quoted on a United States national or regionalsecurities exchange, as reported by NYSE, or, if such security is not so reported, the lastquoted bid price for the such security in the over-the-counter market as reported by theNational Quotation Bureau or similar organization, or, if such bid price is not available,the market value of such security on such date as determined by a nationally recognizedindependent investment banking firm retained for this purpose by the Corporation.     “Corporate Trust Office” means the principal corporate trust office of theTransfer Agent at which, at any particular time, its corporate trust business shall beadministered.     “Current Market Price” means (a) on any day the average of the ClosingPrices for the five consecutive Trading Days preceding the earlier of the day preceding theday in question and the day before the “ex date” with respect to the issuance ordistribution requiring computation, (b) in the case of any Spin-Off that iseffected simultaneously with an Initial Public Offering of the securities being distributedin the Spin-Off, the Closing Price of the Common Shares on the Trading Day on which theinitial public offering price of the securities being distributed in the Spin-Off isdetermined, and (c) in the case of any other Spin-Off, the average of the ClosingPrices of the Common Shares over the first 10 Trading Days after the effective date of suchSpin-Off. For purposes of this paragraph, the term “ex date,” when used with respect toany issuance or distribution, shall mean the first date on which the Common Shares traderegular way on such exchange or in such market without the right to receive such issuanceor distribution.
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     “Fair Market Value” means (a) in the case of any Spin-Off that iseffected simultaneously with an Initial Public Offering of such securities, the initialpublic offering price of those securities, and (b) in the case of any otherSpin-Off, the average of the Closing Prices of those securities overthe first 10 Trading Days after the effective date of such Spin-Off.     “Holder” means the person in whose name any shares of this Series areregistered in the books and records of the Corporation.     “Initial Public Offering” means the first time securities of the same class ortype as the securities being distributed in the Spin-Off are offered to the public forcash.     “Spin-Off” means a dividend or other distribution of shares of capital stockof any class or series, or similar equity interests, of or relating to a subsidiary orother business unit of the Corporation.     “Trading Day” means a day on which the Common Shares (A) are notsuspended from trading on any national or regional securities exchange or association orover-the-counter market at the close of business and (B) have traded at least onceon the national or regional securities exchange or association or over-the-counter marketthat is the primary market for the trading of the Common Shares.     “Transfer Agent” shall be Mellon Investor Services LLC unless and until asuccessor is selected by the Corporation, and then such successor.     11. Fractional Shares.     No fractional Common Shares shall be issued upon the conversion of any shares of this Series.In lieu of any fraction of a Common Share that would otherwise be issuable in respect of theaggregate number of shares of this Series surrendered by the same Holder upon a conversion asdescribed in Sections 7(i), 8 or 9(i), such Holder shall have the right to receive an amount incash (computed to the nearest cent) equal to the same fraction of (a) in the case ofSection 9(i), the Current Market Price or (b) in the case of Sections 7(i) or 8, theClosing Price of the Common Shares determined as of the second Trading Day immediately precedingthe effective date of conversion.     12. Miscellaneous.     Procedures for conversion of shares of this Series, in accordance with Sections 6, 7or 8, not held in certificated form will be governed by arrangements among the depositary,participants and persons that may hold beneficial interests through participants designedto permit conversion without the physical movement of certificates. Payments, transfers,deliveries, exchanges and other matters relating to beneficial interests in global securitycertificates may be subject to various policies and procedures adopted by the depositaryfrom time to time.
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     The liquidation preference and the annual dividend rate set forth herein each shall besubject to equitable adjustment whenever there shall occur a stock split, combination,reclassification or other similar event involving this Series. Such adjustments shall bedetermined in good faith by the Board of Directors and submitted by the Board of Directorsto the Transfer Agent.     For the purposes of Section 9, the number of Common Shares at any time outstandingshall not include shares held in the treasury of the Corporation but shall include sharesissuable in respect of scrip certificates issued in lieu of fractions of Common Shares.The Corporation will not pay any dividend or make any distribution with respect to sharesheld in treasury.     If the Corporation shall take any action affecting the Common Shares, other thanaction described in Section 9, that in the opinion of the Board of Directors wouldmaterially adversely affect the conversion rights of the Holders of the shares of thisSeries, then the Conversion Rate and/or the Optional Conversion Rate for this Series may beadjusted, to the extent permitted by law, in such manner, if any, and at such time, as theBoard of Directors may determine to be equitable in the circumstances.     The Corporation covenants that it will at all times reserve and keep available, freefrom preemptive rights, out of the aggregate of its authorized but unissued Common Sharesfor the purpose of effecting conversion of this Series, the full number of Common Sharesdeliverable upon the conversion of all outstanding shares of this Series not theretoforeconverted. For purposes of this Section 12(v), the number of Common Shares that shall bedeliverable upon the conversion of all outstanding shares of this Series shall be computedas if at the time of computation all such outstanding shares were held by a single Holder.     The Corporation covenants that any Common Shares issued upon conversion of shares ofthis Series shall be validly issued, fully paid and non-assessable.     The Corporation shall endeavor to list the Common Shares required to be delivered uponconversion of shares of this Series, prior to such delivery, upon each national securitiesexchange or quotation system, if any, upon which the outstanding Common Shares are listedat the time of such delivery.     The Corporation will pay any and all documentary stamp or similar issue or transfertaxes payable in respect of the issue or delivery of Common Shares or other securities orproperty on conversion of shares of this Series pursuant thereto; provided,however, that the Corporation shall not be required to pay any tax that may bepayable in respect of any transfer involved in the issue or delivery of Common Shares orother securities or property in a name other than that of the Holder of this Series to beconverted and no such issue or delivery shall be made unless and until the personrequesting such issue or delivery has paid to the
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Corporation the amount of any such tax or established, to the reasonable satisfactionof the Corporation, that such tax has been paid.     This Series is not redeemable.     For purposes of this Paragraph A.2, all shares of this Series shall be deemedoutstanding, except from the date of registration of transfer, all shares of this Seriesheld of record by the Corporation or any subsidiary of the Corporation.     This Series is not entitled to any preemptive or subscription rights in respect of anysecurities of the Corporation.     Whenever possible, each provision hereof shall be interpreted in a manner as to beeffective and valid under applicable law, but if any provision hereof is held to beprohibited by or invalid under applicable law, such provision shall be ineffective only tothe extent of such prohibition or invalidity, without invalidating or otherwise adverselyaffecting the remaining provisions hereof. If a court of competent jurisdiction shoulddetermine that a provision hereof would be valid or enforceable if a period of time wereextended or shortened or a particular percentage were increased or decreased, then suchcourt may make such change as shall be necessary to render the provision in questioneffective and valid under applicable law.     This Series may be issued in fractions of a share which shall entitle the Holder, inproportion to such Holder’s fractional shares, to exercise voting rights, receivedividends, participate in distributions and have the benefit of all other rights of Holdersof this Series.     Subject to applicable escheat laws, any monies set aside by the Corporation in respectof any payment with respect to shares of this Series, or dividends thereon, and unclaimedat the end of two years from the date upon which such payment is due and payable shallrevert to the general funds of the Corporation, after which reversion the Holders of suchshares shall look only to the general funds of the Corporation for the payment thereof.Any interest accrued on funds so deposited shall be paid to the Corporation from time totime.     Except as may otherwise be required by law, the shares of this Series shall not haveany voting powers, preferences and relative, participating, optional or other specialrights, other than those specifically set forth in this Certificate of Amendment or theRestated Certificate of Incorporation.     The headings of the various subdivisions hereof are for convenience of reference onlyand shall not affect the interpretation of any of the provisions hereof.     If any of the voting powers, preferences and relative participating, optional andother special rights of this Series and qualifications, limitations and restrictionsthereof set forth herein is invalid, unlawful or incapable of being
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enforced by reason of any rule of law or public policy, all other voting powers,preferences and relative participating, optional and other special rights of this Seriesand qualifications, limitations and restrictions thereof set forth herein that can be giveneffect without the invalid, unlawful or unenforceable voting powers, preferences andrelative participating, optional and other special rights of this Series andqualifications, limitations and restrictions thereof shall, nevertheless, remain in fullforce and effect, and no voting powers, preferences and relative participating, optional orother special rights of this Series and qualifications, limitations and restrictionsthereof herein set forth shall be deemed dependent upon any other such voting powers,preferences and relative participating, optional or other special rights of this Series andqualifications limitations and restrictions thereof unless so expressed herein.     Shares of this Series that have been issued and reacquired in any manner, includingshares purchased or exchanged or converted, shall (upon compliance with any applicableprovisions of the laws of New York) have the status of authorized but unissued shares ofpreferred stock of the Corporation undesignated as to series and may be designated orredesignated and issued or reissued, as the case may be, as part of any series of preferredstock of the Corporation, provided that any issuance of such shares as this Seriesmust be in compliance with the terms hereof.     If any certificates of shares of this Series shall be mutilated, lost, stolen ordestroyed, the Corporation shall issue, in exchange and in substitution for and uponcancellation of the mutilated certificates of shares of this Series, or in lieu of andsubstitution for certificates of this Series lost, stolen or destroyed, a new certificateof this Series and of like tenor and representing an equivalent amount of shares of thisSeries, but only upon receipt of evidence of such loss, theft or destruction of suchcertificate of this Series and indemnity, if requested, satisfactory to the Corporation andthe Transfer Agent. The Corporation is not required to issue any certificates representingshares of this Series on or after the Conversion Date. In place of the delivery of areplacement certificate following the Conversion Date, the Transfer Agent, upon delivery ofthe evidence and indemnity described above, will deliver Common Shares pursuant to theterms of this Series evidenced by the certificate.     4. Pursuant to authority vested in the Board of Directors by the provisions of Paragraph A ofArticle THIRD of the Restated Certificate of Incorporation of the Corporation, the amendments tosuch Restated Certificate of Incorporation set forth above were adopted by the affirmative vote ofa majority of the Board of Directors of the Corporation at a meeting held on May 1, 2002.     FOURTH: The office of the Corporation shall be located in the City of New York, County of NewYork, State of New York. CT Corporation System, 1633 Broadway, New York, New York 10019, isdesignated as the registered agent of the Corporation upon whom process in any action or proceedingagainst it may be served. The Secretary of State of the State of New York is also designated asthe agent of the
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Corporation upon whom process in any action or proceeding against it may be served. Theaddress to which the Secretary of State shall mail a copy of process in any action or proceedingagainst the Corporation which may be served upon him is: Phelps Dodge Corporation, c/o CTCorporation System, 1633 Broadway, New York, New York 10019.     FIFTH: The duration of the Corporation shall be perpetual.     SIXTH: The number of the Corporation’s Directors shall not be less than nine nor more thantwelve, provided that whenever the holders of any one or more series of Preferred Shares of theCorporation become entitled to elect one or more Directors to the Board of Directors in accordancewith any applicable provisions of this Certificate of Incorporation, such maximum number ofDirectors shall be increased automatically by the number of Directors such holders are so entitledto elect. Such increase shall remain in effect until the right of such holders to elect suchDirector or Directors shall cease and until the Director or Directors elected by such holders shallno longer hold office. No Director may be removed without cause by shareholders of theCorporation.     SEVENTH: The personal liability of the Directors of the Corporation for any breach of duty insuch capacity is hereby eliminated and limited to the fullest extent permitted by Section 402(b) ofthe New York Business Corporation Law, as the same may be amended from time to time.
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