State
      of Delaware
                Secretary
      ofState
                Division
      of Corporations
                Delivered
      05:07 PM 08/07/2006
                FILED
      04:37 PM 08/07/2006
                SRV
      060738704 - 4194766 FILE




CERTIFICATE
OF INCORPORATION
 OF
HECLA HOLDINGS INC.
   ARTICLE
I.
  Name
 
 The name
of the Corporation shall be HECLA HOLDINGS INC.
  ARTICLE II.
  Registered
Office
  The
address of the registered office of the Corporation in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware
19801. The name of its registered agent at such address is The Corporation Trust
Company.
  ARTICLE
III.
  Purpose
  The
purpose for which the Corporation is formed is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
  ARTICLE
IV.
  Capital
Stock
  Section
1. Authorized
Capital Stock. The Corporation shall be authorized to issue two classes
of shares of Capital Stock to be designated, respectively, "Preferred Stock" and
"Common Stock"; the total number of shares of capital stock which the
Corporation shall have authority to issue is 405,000,000; the total number of
shares of Preferred Stock shall be 5,000,000, and each such share shall have a
par value of $0.25; the total number of shares of Common Stock shall be
400,000,000, and each such share shall have a par value of $0.25.
  Section
2. Issuance
of Preferred Stock. Shares of Preferred Stock may be issued from time to
time in one or more series. The Board of Directors of the Corporation
(hereinafter referred to in this Certificate of Incorporation as the "Board") is
hereby authorized to fix the voting
rights, if any, designations, powers, preferences and the relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, of any unissued series of Preferred Stock;
and to fix the number of shares constituting such series, and to increase or
decrease the number of shares of any such series (but not below the number of
shares thereof then outstanding).
  1
  Section
3.NoPreemptive
Rights. Without limiting the power of the Corporation to grant such
rights by private contract, no holders of stock of the Corporation shall be
entitled as such, as a matter of right, to the preemptive right to purchase or
subscribe for any stock which the Corporation may issue or sell, whether or not
exchangeable for any stock of the Corporation and whether out of unissued shares
authorized by this Certificate of Incorporation as originally filed, or by any
amendment hereof, or out of shares of stock of the Corporation acquired by it
after the issuance thereof, and whether issued for cash, labor performed,
personal property of any kind, including securities of other corporations, real
property or interest therein, nor shall any holder of any shares of the capital
stock of the Corporation be entitled as such, as a matter of right, to purchase
or subscribe for any obligation which the Corporation may issue or sell which
shall be attached or appurtenant to any warrant or warrants or any other
instrument or instruments that shall confer upon the holder or holders of such
obligation the right to subscribe for or purchase from the Corporation any
shares of its capital stock.
  Section
4. Voting
Rights. Except as otherwise provided by law or by the resolution or
resolutions adopted by the Board designating the rights, powers and preferences
of any series of Preferred Stock, the Common Stock shall have the exclusive
right to vote for the election of directors and for all other purposes, each
holder of the Common Stock being entitled to one vote for each share held.
Whenever this Certificate of Incorporation or the By-Laws of the Corporation
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors (such capital stock is
hereinafter referred to in this Certificate of Incorporation as "Voting Stock"),
voting together as a single class, for the taking of corporate action: (i) such
affirmative vote shall be in addition to any other affirmative vote required by
law or by the resolution or resolutions designating the rights, powers and
preferences of any outstanding series of Preferred Stock; and (ii) each
outstanding share of Common Stock shall be entitled to one vote and each
outstanding share of each series of Preferred Stock which is Voting Stock shall
be entitled to the number of votes to which it is generally entitled, pursuant
to the resolution or resolutions designating the rights, powers and preferences
of such series of Preferred Stock, in the election of directors.
  2
  ARTICLE
V
  By-Laws
  In furtherance and not in
limitation of the powers conferred by law, the Board is expressly authorized to
make, repeal, alter, amend and rescind the By-Laws of the Corporation by a
majority vote of the entire Board at any regular or special meeting of the
Board; provided, however that, notwithstanding anything contained in this
Certificate of Incorporation or the By- Laws of the Corporation to the contrary,
the affirmative vote of the holders of at least 80% of the voting power of the
then outstanding shares of Voting Stock, voting together as a single class,
shall be required to (i) alter, amend or repeal any provision of the By-Laws
which is substantially identical to and/or implements the last sentence of
Article IV, or Articles VI, VIIor VIII, of this Certificate of Incorporation or (ii) alter, amend or
repeal any provision of this proviso to Article V.
  ARTICLE
VI.
  Board
of Directors
  Section
1. Number,Electionand
Terms. The business and affairs of the Corporation shall be managed under
the direction of a Board of Directors which, subject to any right of the holders
of any series of Preferred Stock then outstanding to elect additional directors
under specified circumstances shall consist of not less than five nor more than
nine persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to time
by the Board pursuant to a resolution adopted by a majority of the entire Board.
The directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of the first class to expire at the 1984
Annual Meeting of Shareholders, the term of office of the second class to expire
at the 1985 Annual Meeting of Shareholders and the term of office of the third
class to expire at the 1986 Annual Meeting of Shareholders. At each Annual
Meeting of Shareholders following such initial classification and election,
directors elected to succeed thosedirectors whose terms expire shall be elected for a term of office to
expire at the third succeeding Annual Meeting of Shareholders after their
election.
  Section
2. Newly
Created Directorships and Vacancies. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled
only by a majority vote of the directors then in office, and directors so chosen
shall hold office for a term expiring at the Annual Meeting of Shareholders at
which the term of the class to which they have been elected expires. No decrease
in the number of directors constituting the Board shall shorten the term of any
incumbent director.
 3
  Section
3. Removal.
Subject to the rights of the holders of any series of Preferred Stock then
outstanding, any director, or the entire Board may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least 80% of the voting power of the then outstanding shares of the Voting
Stock, voting together as a single class.
  Section
4. Amendment,
Repeal, etc. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of the then outstanding shares of Voting Stock, voting
together as a single class, shall be required to alter, amend or repeal this
Article VI.
  ARTICLE
VII.
  Actions
by Shareholders
  Any
action required or permitted to be taken by the shareholders of the Corporation
must be effected at a duly called annual or special meeting of shareholders of
the Corporation and may not be effected by any consent in writing by such
shareholders. Special meetings of shareholders of the Corporation may be called
only by the Board pursuant to a resolution approved by a majority of the entire
Board. Notwithstanding anything contained in this Certificate of Incorporate to
the contrary, the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal this Article
VII.
  ARTICLE
VIII.
  Certain
Business Combinations
 
 Section
1.Vote
Required for Certain Business Combinations.
  A. Higher
Vote for Certain Business Combinations. Except as otherwise expressly
provided in Section 2 of this Article VIII:
  (i) any
merger or consolidation of the Corporation or any Subsidiary (as hereinafter
defined) with (a) any Interested Shareholder (as hereinafter defined) or (b) any
other corporation (whether or not itself an Interested Shareholder) which is, or
after such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Shareholder; or
  4
  (ii) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Interested Shareholder
or any Affiliate of any Interested Shareholder of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value (as herein defined) of
$1,000,000 or more; or
  (iii) the
issuance or transfer by the Corporation of any Subsidiary (in one transaction or
a series of transactions) of any securities of the Corporation or any subsidiary
to any Interested Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a combination thereof)
having an aggregate Fair Market Value of $1,000,000 or more; or
  (iv) the
adoption of any plan or proposal for the liquidation or dissolution of the
Corporation proposed by or on behalf of an Interested Shareholder or any
Affiliate of any Interested Shareholder; or
  (v) any
reclassification of securities (including any reverse stock split), or
recapitalization of the Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other transaction (whether or
not with or into or otherwise involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or indirectly owned by any
Interested Shareholder or any affiliate of any Interested
Shareholder;
  shall
require the affirmative vote of the holders of at least 80% of the voting power
of the then outstanding shares of Voting Stock, voting together as a single
class. Such affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified, by law or in
any agreement with any national securities exchange or otherwise.
  B. Definition
of "Business Combination". The term "Business Combination" as used in
this Article VIII shall mean any transaction which is referred to in any one or
more of clauses (i) through (v) of paragraph A of this Section 1.
  5
  Section
2. When
Higher Vote is Not Required. The provisions of Section 1 of this Article
VIII shall not be applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as is required by
law and any resolution or resolutions designating the rights, powers and
preferences of any outstanding series of Preferred Stock, if all of the
conditions specified in either of the following paragraphs A and B are met (it
being intended that in the case of a Business Combination not involving any cash
or consideration other than cash to be received by the holders of each class or
series of outstanding Voting Stock (other than Institutional Voting Stock, as
hereinafter defined), the provisions of such Section 1 shall not be applicable
only if the condition specified in the following paragraph A is
met)"
  Approval
by Continuing Directors.The
Business Combination shall have beenapproved
by a majority of the Continuing Directors (as hereinafter
defined).
  Price
and Procedure Requirements.All of
the following conditions shall have been met:
  (i) The
aggregate amount of the cash and the Fair Market Value (as hereinafter
defined) as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to the highest of the
following:
  (a) (if
applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested Shareholder
for any shares of Common Stock acquired by it (1) within the two- year period
immediately
priorto the first public announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the transaction in which it
became an Interested Shareholder, whichever is higher;
  (b) the
Fair Market Value per share of Common Stock on the Announcement Date or on the
date onwhich the Interested Shareholder became an Interested Shareholder (such
latter date is referred to in this Article VIII as the "Determination Date"),
whichever is higher; and
  (c) (if
applicable) the price per share equal to the Fair Market Value per share of
Common Stock on the Announcement Date or the Determination Date, whichever is
higher, multiplied by the ratio of (1) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by
the Interested Shareholder for any shares of Common Stock acquired by it within
the two-year period immediately prior to the Announcement Date to (2) the Fair
Market Value per share of Common Stock on the first day in such two-year period
upon which the Interested Shareholder acquired any shares of Common
Stock.
  6
  (ii) The
aggregate amount of the cash and the Fair Market Value as of the date of the
consummation of the Business Combination of consideration other than cash to be
received per share by holders of shares of any other series of outstanding
Voting Stock (other than Institutional Voting Stock, as hereinafter defined)
shall be at least equal to the highest of the following (it being intended that
the requirements of this paragraph B (ii) shall be required to be met with
respect to every series of outstanding Voting Stock (other than Institutional
Voting Stock), whether or not the Interested Shareholder has previously acquired
any shares of a particular series of Voting Stock):
  (a) (if
applicable) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Interested Shareholder
for any shares of such series of Voting Stock acquired by it (1) within the
two-year period immediately prior to the Announcement Date or (2) in the
transaction in which it became an Interested Shareholder, whichever is
higher;
  (b) (if
applicable) the highest preferential amount per share to which the holders of
shares of such series of Voting Stock are entitled in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation;
  (c) the
Fair Market Value per share of such series of Voting Stock on the Announcement
Date or on the Determination Date, whichever is higher; and
  (d) (if
applicable) the price per share equal to the Fair Market Value per share of such
series of Voting Stock on the Announcement Date or the Determination Date,
whichever is higher, multiplied by the ratio of (1) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Shareholder for any shares of such series of Voting
Stock acquired by it within the two-year period immediately prior to the
Announcement Date to (2) the Fair Market Value per share of such series of
Voting Stock on the first day in such two-year period upon which the Interested
Shareholder acquired any shares of such series of Voting Stock.
  7
  (iii) The
consideration to be received by holders of a particular class (in the case of
Common Stock) or series (in the case of Preferred Stock of outstanding Voting
Stock shall be in cash or in the same form as the Interested Shareholder has
previously paid for shares of such class or series of Voting Stock. If the
Interested Shareholder has paid for shares of any class or series of Voting
Stock with varying forms of consideration, the form of consideration for such
class or series of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such class or series of Voting Stock previously
acquired by it.
  (iv)
After such Interested Shareholder has become an Interested Shareholder and prior
to the consummation of such Business Combinations: (a) except as approved by a
majority of the Continuing Directors, there shall have been no failure to
declare and pay at the regular date therefore any full quarterly dividends
(whether or not cumulative) on the outstanding Preferred Stock; (b) there shall
have been (1) no reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any subdivision of the Common Stock),
except as approved by a majority of the Continuing Directors, and (2) an
increase in such annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of reducing the
number of outstanding shares of Common Stock, unless the failure so to increase
such annual rate is approved by a majority of the Continuing Directors; and (c)
such Interested Shareholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction which
results in such Interested Shareholder becoming an Interested
Shareholder.
  (v) After
such Interested Shareholder has become an Interested Shareholder, such
Interested Shareholder shall not have received the benefit directly or
indirectly (except proportionately as a shareholder), of any loans, advances,
guarantees, pledges or other financial assistance or any tax credits or other
tax advantages provided by the Corporation, whether in anticipation of or in
connection with such Business Combination or otherwise.
  (vi) A
proxy or information statement describing the proposed business Combination and
complying with the requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to public shareholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act or subsequent provisions).
  8
  Section
3. Certain
Definitions. For the purposes of this Article VIII:
  A. A
"Person" shall mean any individual, firm, corporation or other
entity.
  B.
"Interested Shareholder" shall mean any person (other than the Corporation or
any Subsidiary) who or which:
  (i) is
the beneficial owner, directly or indirectly, of more than 12 V2.% of the voting
power of the outstanding Voting Stock; or
  (ii) if
an Affiliate of the Corporation and at any time within the two-year period
immediately prior to the date in question was the beneficial owner, directly or
indirectly, of 12 'A% or more of the voting power of the then outstanding Voting
Stock; or
  (iii) if
an assignee of or has otherwise succeeded to any shares of Voting Stock which
were at any time within the two-year period immediately prior to the date in
question beneficially owned by any Interested Shareholder if such assignment or
succession shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning of the
Securities Act of 1933.
  C. A
person shall be a "beneficial owner" of any Voting Stock:
  (i) which
such person or any of its Affiliates or Associates (as hereinafter defined)
beneficially owns, directly or indirectly; or
  (ii)
which such person or any of its Affiliates or Associates has (a) the right to acquire
(whether such right is exercisable immediately or only after the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any agreement, arrangement or
understanding; or
  (iii)
which are beneficially owned, directly or indirectly, by any other person with
which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring holding, voting or
disposing of any shares of Voting Stock.
  9
 
 D. For
the purpose of determining whether a person is an Interested Shareholder
pursuant to paragraph B of this Section 3, the number of shares of Voting Stock
deemed to be outstanding shall include shares deemed owned through application
of paragraph C of this Section 3 but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or
otherwise.
  E.
"Affiliate" or "Associate" shall have the respective meanings ascribed to such
terms in rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on March 1, 1983.
  F.
"Subsidiary" means any corporation of which a majority of any class of equity
security is owned, directly or indirectly, by the Corporation; provided,
however, that for the purposes of the definition of Interested Shareholder set
forth in paragraph B of this Section 3, the term "Subsidiary" shall mean only a
corporation of which a majority of each class of equity security is owned
directly or indirectly, by the Corporation.
  G.
"Continuing Director" means any member of the Board who is unaffiliated with the
Interested Shareholder and was a member of the Board prior to the time that the
Interested Shareholder became an Interested Shareholder, and any successor of a
Continuing Director who is unaffiliated with the Interested Shareholder and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors then on the Board.
  H. "Fair
Market Value" means: (i) in the case of stock, the highest closing sale price
during the 30-day period immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock Exchange — Listed Stock,
or, if such stock is not quoted on the Composite Tape, on the New York Stock
exchange, or, if such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Securities Exchange Act
of 1934 on which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing bid quotation with respect to a share of such
stock during the 30- day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by the
Board in good faith; and (ii) in the case of property other than cash or stock,
the fair market value of such property on the date in question as determined by
the Board in good faith.
  I.
"Institutional Voting Stock" shall mean any series of Voting Stock which was
issued to and continues to be held solely by one or more insurance companies,
pension funds, commercial banks, savings banks or similar financial institutions
or institutional investors.
  10
  J. In the
event of any Business Combination in which the Corporation survives, the phrase
"consideration other than cash tobe received" as used in Section 2 of this Article VIII shall include the
shares of Common Stock and/or the shares of any series of outstanding Voting
Stock retained by the holders of such shares.
  Section
4. Powers
of the Board of Directors. A majority of the directors of the Corporation
shall have the power and duty to determine for the purposes of this Article
VIII, on the basis of information known to them after reasonable inquiry (A)
whether a person is an Interested Shareholder, (B) the number of shares of
Voting Stock beneficially owned by any person, (c) whether a person is an
Affiliate or Associate of another (D)whether a series of Voting Stock is Institutional Voting Stock and (E)
whether the assets which are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the Corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $1,000,000 or more.
  Section
5. No
Effect on Fiduciary Obligations of Interested Shareholders. Nothing
contained in this Article VIII shall be construed to relieve any Interested
Shareholder from any fiduciary obligation imposed by law.
  Section
6. Amendment,
Repeal, etc. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80% of the voting power of the then outstanding shares of the Voting Stock,
voting together as a single class, shall be required to alter, amend or repeal
this Article VIII.
  ARTICLE
IX.
  Limitation
of Liability and Indemnification
  Section
1. Limitation
of Liability. A director of the Corporation shall not be personally
liable to the Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its shareholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is amended
after approval by theshareholders of this article to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so
amended. This paragraph shall not eliminate or limit the liability of a director
for any act or omission which occurred prior to the effective date of its
adoption. Any repeal or modification of this paragraph by the shareholders of
the Corporation shall not adversely affect any right or protection of a director
of the Corporation existing at the time of such repeal or
modification.
  11
  Section
2.Indemnification
and Insurance.
  A. Right
to Indemnification of Directors, Officers and Employees. Each person who
was or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she is or was a director, officer or employee of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture
trust or other enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director, officer or employee and shall
inure to the benefit of the indemnitees heirs, executors and administrators;
provided, however, that except as provided in paragraph B hereof with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or part thereof) was
authorized by the board of directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expense incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section or otherwise.
  12
  B.Right
of Indemnitee to Bring Suit.If a
claim under paragraph A of this Section is notpaid in
full by the Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case theapplicable
period shall be twenty days, the indemnitee may at any time thereafter bring
suitagainst
the Corporation to recover the unpaid amount of the claim. If successful in
whole or inpart in
any such suit, or in a suit brought by the Corporation to recover an advancement
ofexpenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee toenforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) in any suit bythe
Corporation to recover an advancement of expenses pursuant to the terms of an
undertakingthe
Corporation shall be entitled to recover such expenses upon a final adjudication
that, theindemnitee
has not met the applicable standard of conduct set forth in the Delaware GeneralCorporation
Law. Neither the failure of the Corporation (including its board of directors,
independent legal counsel, or its shareholders) to have made a determination
prior to thecommencement
of such suit that indemnification of the indemnitee is proper in the
circumstancesbecause
the indemnitee has met the applicable standard of conduct set forth in the
DelawareGeneral
Corporation Law, nor an actual determination by the Corporation (including its
board ofdirectors,
independent legal counsel, or its shareholders) that the indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
indemnitee has not met theapplicable
standard of conduct or, in the case of such a suit brought by the indemnitee, be
adefense
to such suit. In any suit brought by the indemnitee to enforce a right to
indemnificationor to an
advancement of expenses hereunder, or by the Corporation to recover an
advancement ofexpenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee isnot
entitled to be indemnified, or to such advancement of expenses under this
Section orotherwise
shall be on the Corporation.
  C.Non-Exclusivity
of Rights.The
rights to indemnification and to the advancement ofexpenses
conferred in this Section shall not be exclusive of any other right which any
personmay have
or hereafter acquire under any statute, this Certificate of Incorporation,
By-Law,agreement,
vote of shareholders or disinterested directors or otherwise. The Corporation isauthorized
to enter into contracts of indemnification.
  D.Insurance.The
Corporation may maintain insurance, at its expense, to protect itselfand any
director, officer, employee or agent of the Corporation or another corporation,partnership,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation
Law.
  13
  E. Indemnification
of Agents of the Corporation. The Corporation may, to the extent
authorized from time to time by the board of directors, grant rights to
indemnification, and to the advancement of expenses to any agent of the
Corporation to the fullest extent of the provisions of this Section with respect
to the indemnification and advancement of expenses of directors, officers and
employees of the Corporation.
  ARTICLE
X.
  Amendment
of Certificate of Incorporation
  The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred on shareholders herein are
granted subject to this reservation. Notwithstanding the foregoing the
provisions set forth in the last sentence of Article IV, and in Articles VI, VII
and VIII may not be altered, amended or repealed in any respect unless such
alteration, amendment or repeal is approved as specified in each
thereof.
  ARTICLE
XI.
  Incorporator
  The name
and mailing address of the incorporator of the Corporation is:
  Tami D.
Hansen
 6500 N.
Mineral Drive, Suite 200
 Coeur
d'Alene, ID 83815-9408
  THE
UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of
forming a corporation to do business both within and without the State of
Delaware and in pursuance of the Delaware General Corporation Law, does make and
file this Certificate of Incorporation, hereby declaring and certifying that the
facts herein stated are true, and accordingly has hereunto set his hand this
7th
day of August 2006.
  /s/
      Tami D. Hansen
                  Tami
      D. Hansen
                  Incorporator
 14
 State
      of Delaware
                      Secretary
      ofState
                      Division
      of Corporations
                      Delivered
      07:46 PM 08/14/2006
                      FILED
      07:18 PM 08/14/2006
                      SRV
      060760795 - 4194766
FILE
  CERTIFICATE
OF DESIGNATIONS, PREFERENCES
 AND
RIGHTS OF SERIES A JUNIOR
 PARTICIPATING
PREFERRED STOCK
  Of
  HECLA
HOLDINGS INC.
  Pursuant
to Section 151(g) of the General Corporation law of the State of
Delaware:
  We,
Phillips S Baker, Jr., President and Chief Executive Officer and Philip C. Wolf,
Vice President and General Counsel and Secretary, of Hecla Holdings Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103
thereof,
  DO HEREBY
CERTIFY:
  That
pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the said Corporation, the said Board of
Directors on August 8, 2006, adopted the following resolution creating a series
of 273,000 shares of Preferred Stock designated as Series A Junior Participating
Preferred Stock;
  RESOLVED
that pursuant to the authority vested in the Board of Directors of this
Corporation in accordance with the provisions of its Certificate of
Incorporation, a series of Preferred Stock of the Corporation be, and it hereby
is, created, and that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as follows:
  I. Designation
and Amount. The shares of this series shall be designated as "Series A
Junior Participating Preferred Stock" (the "Series A Preferred Stock") and the
number of shares constituting such series shall be 273,000. Such number of
shares may be increased or decreased by resolution of the board of directors;
provided,
that no decrease shall reduce the number of shares of Series a Preferred Stock
to a number less than that of the shares then outstanding.
  1
 
 II. Dividends
and Distributions.
  (A)
Subject to the prior and superior rights of the holders of any shares of any
series of Preferred Stock ranking prior and superior to the shares of Series A
Preferred Stock with respect to dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of C9ommon Stock and of any other
junior stock, shall be entitled to receive, when as and if declared by the board
of Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and December in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing o the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $10
or (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares of common Stock, par
value $0.25 per share, of the Corporation (the "Common Stock") or a subdivision
of the outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date or with respect to the first Quarterly Dividend Payment Date, since
the first issuance of any share or fraction of a share of Series a Preferred
Stock. In the event the Corporation shall at any time declare or pay any
dividend on common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
  (B) The
Corporation shall declare a dividend or distribution on the Series A Preferred
Stock as provided in paragraph (A) of this Section immediately after it declares
a dividend or distribution on the Common Stock (other than a dividend payable in
shares of common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
quarterly Dividend Payment Date and the net subsequent Quarterly Dividend
Payment Date, a dividend of $10 per share on the Series a preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
  2
  (C)
Dividends shall begin to accrue and be cumulative on outstanding shares of
Series A Preferred Stock from the quarterly Dividend Payment Date net preceding
the date of issue of such shares of Series A Preferred Stock, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue form the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such quarterly Dividend Payment Date, in
either of which event such dividends shall begin to accrue and be cumulative
from such quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
  III.
Voting
Rights. The holders of shares of Series A Preferred Stock shall have the
following voting rights:
  (A)
Subject to the provision for adjustment hereinafter set forth, each share of
Series A Preferred Stock shall entitle the holder thereof to 100 votes on all
matters submitted to a vote of the shareholders of the Corporation. In the event
the Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
number of votes per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the number of shares of
common Stock outstanding immediately after such event and the denominator of
which is the number of shares of common Stock that were outstanding immediately
prior to such event.
  (B)
Except as otherwise provided herein or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of common Stock shall vote together as
one class on all matters submitted to a vote of shareholders of the
Corporation.
  3
  (C)
Except as set forth herein holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
  IV.Certain
Restrictions.
  (A)
Whenever quarterly dividends or other dividends or distributions payable on the
Series A Preferred Stock as provided in Section II are in arrears, thereafter
and until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been paid
in full, the Corporation shall not:
  (i)
declare or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series A Preferred Stock;
  (ii)
declare or pay dividends on or make any other distributions on any shares of
stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
  (iii)
redeem or purchase or otherwise acquire for consideration shares of any stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A preferred Stock, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to the
Series A Preferred Stock; or
  (iv)
purchase or otherwise acquire for consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity with the Series A Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of
the respective series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or
classes.
  4
 
 (B)The
Corporation shall not permit any subsidiary of the Corporation topurchase
or otherwise acquire for consideration any shares of stock of theCorporation
unless the Corporation could, under paragraph (A) of this Section IVpurchase
or otherwise acquire such shares at such time and in such
manner.
  (v)Reacquired
Shares. Any shares of Series A Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
  (vi)Liquidation, Dissolution or Winding
Up.Upon any liquidation, dissolution
or winding up of the Corporation, no distribution shall be made (1) to the
holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to be
distributed per share to holders of Common Stock, or (2) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made ratably
on the Series A Preferred Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock), into a greater or lesser
number of shares of Common Stock then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under the provision in clause (i) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
  (vii)Consolidation,
Merger, etc. In case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Preferred Stock shall at
the same time be similarly exchanged or changed in an amount per share (subject
to the
provision for adjustment hereinafter set forth) equal to 100 times the aggregate
amount of stock, securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at any time declare or
pay any dividend on Common Stock payable in shares or Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which I the number of shares
of common Stock that were outstanding immediately prior to such
event.
  5
  VIII.No
Redemption. The shares of Series A Preferred Stock shall not be
redeemable.
  IX.Amendment.
The Certificate of Incorporation of the Corporation shall not be amended in any
manner which would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of at leas two-thirds of the outstanding
shares of Series A Preferred Stock, voting together as a single
series.
  IN
WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm
the foregoing as true under the penalties of perjury this 8th day of August
2006.
    HECLA
      HOLDINGS INC.
                
                By: /s/
      Phillips S. Baker, Jr.
                Phillips
      S. Baker, Jr.
                President
      and CEO[Corporate
      Seal]
                
                ATTEST:/s/
      Philip C. Wolf
                  Philip
      C. Wolf

                    Vice
      President, General CounselAnd
      Secretary
 
 6
  
 State
      of Delaware
                    Secretary
      of State
                    Division
      of Corporations
                    Delivered
      07:46 PM 08/14/2006
                    FILED
      07:46 PM 08/14/2006
                    SRV
      060760800 - 4194766 FILE
 CERTIFICATE
OF DESIGNATIONS, PREFERENCES AND RIGHTS
 OF
SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
 (Par
Value $0.25 Per Share)
  of
  HECLA
HOLDINGS INC.
  Pursuant
to Section 151 of the General Corporation Law
 of
the State of Delaware
  The
undersigned, Philips S. Baker, Jr., President and Chief Executive Officer of
HECLA HOLDINGS INC., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance with
the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
  That in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware and pursuant to Article IV of the Certificate of
Incorporation of the Corporation, the Board of Directors of the Corporation is
authorized to issue from time to time shares of Preferred Stock, par value $0.25
per share, in one or more series and has authorized the creation of the series
of Preferred Stock hereinafter provided for and has established the voting
rights thereof and authorized, in accordance with Section 141(c) of the General
Corporation Law of the State of Delaware and Article III, Section 7 of the
By-Laws, an Executive Committee of the Board of Directors to adopt, and said
Executive Committee has adopted, the following resolution (which includes the
voting powers of such series as authorized by the Board of Directors) creating a
series of 2,300,000 shares of Preferred Stock, par value $0.25 per share,
designated as Series B Cumulative Convertible Preferred Stock, as
follows:
  RESOLVED
that pursuant to the authority expressly vested in the Board of Directors of
this Corporation in accordance with the provisions of its Certificate of
Incorporation, a series of Preferred Stock of the Corporation, par value $0.25
per share, be and it hereby is, created, and that the designation and amount
thereof and the voting powers preferences and relative, participating,
operational and other special rights of the shares of such series, and the
qualifications, limitation or restrictions thereof are as follows:
  1
  Section
1. Number
of Shares and Designation. Two million three hundred thousand (2,300,000)
shares of the Preferred Stock, par value $0.25 per share, of the Corporation are
hereby constituted as a series of the Preferred Stock designated as Series B
Cumulative Convertible Preferred Stock (the "Convertible Preferred
Stock").
  Section
2. Definitions.
For purposes of the Convertible Preferred Stock, the following terms shall have
the meanings indicated:
  "Board of
Directors" shall mean the board of directors of the Corporation or any committee
authorized by such board of directors to perform any of its responsibilities
with respect to the Convertible Preferred Stock.
  "Business
Day" shall mean any day other than a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York are not required
to be open.
  "Common
Stock" shall mean the Common Stock of the Corporation, par value $0.25 per
share.
  "Constituent
Person" shall have the meaning set forth in paragraph (E) of Section 7
hereof.
  "Conversion
Price" shall mean the conversion price per share of Common tock for which the
Convertible Preferred Stock is convertible; as such Conversion Price may be
adjusted pursuant to Section 7 hereof. The initial Conversion Price will be
$15.55.
  "Current
Market Price" of publicly traded shares of Common Stock or any other class of
capital stock or other security of the Corporation or any other issuer for any
day shall mean the last reported sales price, regular way on such day, or, if no
sale takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the New York
Stock Exchange Composite tape or, if such security is not listed or admitted for
trading on the New York Stock Exchange ("NYSE"), on the principal national
securities exchange on which such security is listed or admitted for trading or,
if not listed or admitted for trading on any national securities exchange, on
the National Market System of the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or, if such security is not quoted
on such National Market System, the average of the closing bid and asked prices
on such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on such day shall not have been reported through
NASDAQ, the average of the bid and asked prices on such day as furnished by any
NYSE member firm regularly making a market in such security selected for such
purpose by the Board of directors.
  2
  "Dividend
Payment Date" shall mean October 1, January 1, April 1 and July 1 in each year,
commencing on October
1, 1993;provided,
however, that if any Dividend Payment Date falls on any day other than a
Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment
Date.
  "Dividend Periods" shall
mean quarterly dividend periods commencing on October 1, January 1, April 1 and
July 1 of each year and ending on and including the day preceding the first day
of the next succeeding Dividend Period (other than the initial Dividend Period,
which shall commence on the Issue Date and end on and include October
1, 1993).
  "Fair
Market Value" shall mean the average of the daily Current Market Prices of a
share of Common Stock during the five (5) consecutive Trading Days selected by
the Corporation commencing not more than 20 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex" date
with respect to the issuance or distribution requiring such computation. The
term "'ex' date", when used with respect to any issuance or distribution, means
the first day on which the Common Stock trades regular way, without the right to
receive such issuance or distribution, on the exchange or in the market, as the
case may be, used to determine that day's Current Market Price.
  "Issue
Date" shall mean the first date on which shares of Convertible Preferred Stock
are issued and sold.
  "Junior
Stock" shall mean the Common Stock, the Series A Preferred Shares and any other
class or series of stock of the Corporation over which the Convertible Preferred
Stock has preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding up of the
Corporation.
  "Liquidation
Preference" shall have the meaning set forth in paragraph (A) of Section 4
hereof.
  "LYONS"
shall mean the Corporation's outstanding Liquid Yield Option Notes due
2004.
  "non-electing
share" shall have the meaning set forth in paragraph (E)of Section 7 hereof.
  "Parity
Stock" shall mean any other class or series of stock of the Corporation which
ranks on a parity with the Convertible Preferred Stock as to payment of
dividends or in the distribution of the assets on any liquidation, dissolution
or winding up of the Corporation.
  3
  "Person"
shall mean any individual, firm, partnership, corporation or other entity, and
shall include any successor (by merger or otherwise) of such
entity.
  "Preferred
Director—
shall mean a director elected pursuant to paragraph (C) of Section 9
hereof.
  "Redemption
Date" shall have the meaning set forth in paragraph (C) of Section 5
hereof.
  "Rights"
shall mean the rights of the Corporation which are issuable under the
Corporation's Rights Agreement dated as of May 19, 1986, a amended from time to
time, or rights to purchase any capital stock of the Corporation under any
successor shareholder rights plan or plans adopted in replacement of the
Corporation's Rights Agreement.
  "Securities"
shall have the meaning set forth in paragraph (D) (iii) of Section 7
hereof.
  "Series A
Preferred Shares" shall mean the preferred stock of the Corporation, par value
$0.25 per share, designated Series A Junior Participating Preferred Shares in
the Certificate of Incorporation of the Corporation.
  "set
apart for payment" shall be deemed to include, without any action other than the
following, the recording by the Corporation in its accounting ledgers of any
accounting or bookkeeping entry which indicates, pursuant to a declaration of
dividends or other distribution by the Board of Directors, the allocation of
funds to be so paid on any series or class of capital stock of the Corporation;
provided,
however, that if any funds for any class or series of Junior Stock or any
parity stock are placed in a separate account of the Corporation or delivered to
a disbursing, paying or other similar agent, then during the period that any
such funds remain in such account or with such agent, "set apart for payment"
with respect to the Convertible Preferred Stock shall mean placing such funds in
a separate account or delivering such funds to a disbursing, paying or other
similar agent.
  "Stated
Value" shall have the meaning set forth in paragraph (A) of Section 4
hereof.
  "Trading
Day" shall mean any day on which the securities in question are traded on the
NYSE, or if such securities are not listed or admitted for trading on the NYSE,
on the principal national securities exchange on which such securities are
listed or admitted, or if not listed or admitted for trading in any national
securities exchange, on the National Market System of the NASDAQ, or if such
securities are not quoted on such National Market System, in the applicable
securities market in which the securities are traded.
  4
  "Transaction"
shall have the meaning set forth in paragraph (E) of Section 7
hereof.
  "Transfer
Agent" shall mean American Stock Transfer & Trust Company or such other
agent or agents of the Corporation as may be designated by the Board of
Directors as the transfer agent for the Convertible Preferred
Stock.
  Section 3. Dividends.
  (A) The
holders of shares of the Convertible Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of assets
legally available for that purpose, dividends payable in cash at the rate per
annum of $3.50 per share of Convertible Preferred Stock. Such dividends shall be
cumulative from the Issue Date, whether or not in any Dividend Period or
Dividend Periods there shall be assets of the corporation legally available for
the payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board of Directors, in arrears on Dividend Payment Dates,
commencing on October 1, 1993. Each such dividend shall be payable in arrears to
the holders of record and shares of the Convertible Preferred Stock, as they
appear on the stock records of the Corporation at the close of business on such
record dates, which shall not be more than 60 days nor less than 10 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any Dividend Payment Date,
to holders of record on such date, not exceeding 45 days preceding the payment
date thereof, as may be fixed by the Board of Directors.
  (B) The
amount of dividends payable for each full Dividend Period for the Convertible
Preferred Stock shall be computed by dividing the annual dividend rate by four.
The amount of dividends payable for the initial dividend Period, or any other
period shorter or longer than a full dividend Period, on the Convertible
Preferred Stock shall be computed on the basis of twelve 30-day months and a
360-day year. Holders of shares of Convertible Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in excess
of cumulative dividends, as herein provided, on the Convertible Preferred Stock.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Convertible Preferred Stock that may be
in arrears.
  (C) So
long as any shares of the Convertible Preferred Stock are outstanding, no
dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any Parity Stock for any period
unless full cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for such
payment on the Convertible Preferred Stock for all Dividend Periods terminating
on or prior to the date of payment of the
dividend on such Parity Stock. When dividends are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon shares of the Convertible Preferred Stock and all dividends
declared upon any parity Stock shall be declared ratably in proportion to the
respective amounts of dividends accumulated and unpaid on the Convertible
Preferred Stock and accumulated and unpaid on such Parity Stock.
  5
  (D) So
long as any shares of the Convertible Preferred Stock are outstanding, no
dividends (other than (i) the Rights and (ii) dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Junior Stock) shall be declared or paid or set apart for payment or other
distribution declared or made upon Junior Stock, nor shall any Junior Stock or
any Parity Stock be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the Corporation or any
subsidiary) for any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any such stock) by the
Corporation, directly or indirectly (except by conversion into or exchange for
Junior Stock), unless in each case all accrued and unpaid dividends on all
outstanding shares of the Convertible Preferred Stock and any Parity Stock shall
have been paid or funds have been set apart for payment of such dividends for
all past Dividend Periods with respect to the Convertible Preferred Stock and
all past Dividend Periods with respect to such Parity Stock.
  Section
4.Payments
upon Liquidation.
  (A) In
the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for the
holders of Junior Stock, the holders of the shares of Convertible Preferred
Stock shall be entitled to receive fifty dollars ($50) per share of Convertible
Preferred Stock (the "Stated Value") plus an amount per share of Convertible
Preferred Stock equal to all dividends (whether) or not earned or declared)
accrued and unpaid thereon to the date of final distribution to such holders
(the "Liquidation Preference"); but such holders shall not be entitled to any
further payment. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof, distributable
among the holders of the shares of Convertible Preferred Stock shall be
insufficient to pay in full and Liquidation Preference and the Liquidation
Preference on all other shares of any parity Stock, then such assets, or the
proceeds thereof, shall be distributed among the holders of shares of
Convertible Preferred Stock and any such other Parity Stock ratably in
accordance with the respective amounts that would be payable on such shares of
Convertible Preferred Stock and any such other stock if all amounts payable
thereon were paid in full. For the purposes of this Section 4, (i) a
consolidation, merger or business combination of the corporation with or into
one or more corporations, or (ii) a sale or transfer of all or substantially all
of the Corporation's assets, shall not be deemed to
be a liquidation, dissolution or winding up, voluntary or involuntary, of the
Corporation.
  6
  (B)
Subject to the rights of the holders of Parity Stock, after payment shall have
been made to the holders of the Convertible Preferred Stock, and to the fullest
extent provided in this Section 4, any other series or class or classes of
Junior Stock shall, subject to the respective terms and provisions (if any)
applying thereto, be entitled to receive any and all assets remaining to be paid
or distributed, and the holders of the Convertible Preferred Stock shall not be
entitled to share therein.
  Section
5.Redemption
at the Option of the Corporation.
  (A) The
shares of Convertible Preferred Stock shall be redeemable at the option of the
Corporation, in whole, or, from time to time, in part, out of funds legally
available for such purpose, at any time or after July 1, 1996, at the following
redemption prices per share, if redeemed during the twelve-month period
beginning July 1 of the year indicated below, plus, in each case, an amount
equal to all dividends accrued and unpaid on the shares of Convertible Preferred
Stock up to the date fixed for the redemption, upon giving notice as provided
herein below:
  Redemption
      PriceYear
                
                Per
Share1996
                
                $
                52.451997
                
                
                52.101998
                
                
                51.751999
                
                
                51.402000
                
                
                51.052001
                
                
                50.702002
                
                
                50.352003
      and thereafter
                
                
                50.00
  (B) If
fewer than all of the outstanding shares of Convertible Preferred Stock are to
be redeemed, the number of shares to be redeemed shall be determined by the
Board of Directors and the shares to be redeemed shall be determined pro rata or
by lot or in such other manner and subject to such regulations as the Board of
Directors in its sole discretion shall prescribe.
  7
  (C) At
least 30 days, but not more than 60 days, prior to the date fixed for the
redemption of shares of Convertible Preferred Stock, a written notice shall be
mailed in postage prepaid envelope to each holder of record of the shares of
Convertible Preferred Stock to be redeemed, addressed to such holder at his or
her post office address as shown on the records of the Corporation, notifying
such holder of the election of the Corporation to redeem such shares, stating
the date fixed for redemption thereof
(the "Redemption Date"), and calling upon such holder to surrender to the
Corporation, on the Redemption Date at the place designated in such notice, his
or her certificate or certificates representing the number of shares specified
in such notice of redemption. On or after the Redemption Date, such holder of
shares of Convertible Preferred Stock to be redeemed shall present and surrender
his or her certificate or certificates for such shares to the Corporation at the
place designated in such notice and thereupon the redemption price of such
shares shall be paid to the order of the person whose name appears on such
certificate or certificates as the owner thereof and such surrendered
certificate shall be cancelled. In case less than all the shares represented by
any such certificates are redeemed, a new certificate shall be issued
representing the unredeemed shares.
  From and
after the Redemption Date (unless the Corporation defaults in payment of the
redemption price), all dividends on the shares of Convertible Preferred Stock
designated for redemption in such notice shall cease to accrue, and all rights
of the holders thereof as stockholders of the Corporation, except the right to
receive the redemption price of such shares (including an amount equal to all
accrued and unpaid dividends up to the Redemption Date) upon the surrender of
certificates representing the same, shall cease and terminate and such shares
shall not thereafter be transferred (except with the consent of the corporation)
on the books of the corporation, and such shares shall not be deemed to be
outstanding for any purpose whatsoever; providedhowever,
in the case of the Redemption Date falling after a dividend payment record date
and prior to the related Dividend Payment Date, the holders of Convertible
Preferred Stock at the close of business on such record date will be entitled to
receive the dividend payable on such shares on the corresponding Dividend
Payment Date, notwithstanding the redemption of such shares following such
dividend payment record date.
  At its
election, the Corporation, prior to the Redemption Date, may deposit the
redemption price (including an amount equal to all accrued and unpaid dividends
up to the Redemption Date) of the shares of Convertible Preferred Stock so
called for redemption in trust for the holders thereof with a bank or trust
company having a capital surplus and undivided profits aggregating not less than
$50,000,000) in the borough of Manhattan, city and state of New York, or in any
other city in which the corporation at the time shall maintain a transfer agency
with respect to such shares, in which case the aforesaid notice to holders of
shares of Convertible Preferred Stock to be redeemed shall (i) state the date of
such deposit, (ii) shall specify the office of such bank or trust company as the
place of payment of the redemption price and (iii) shall call upon such holders
to surrender the certificates representing such shares at such place on or after
the date fixed in such redemption notice (which shall not be later than the
Redemption Date) against payment of the redemption price (including an amount
equal to all accrued and unpaid dividends up to the Redemption Date). Any
interest accrued on such funds shall be paid to the corporation from time to
time. Any moneys so deposited which shall remain unclaimed by the holders of
such shares of Convertible Preferred Stock at
the end of two years after the Redemption Date shall be returned by such bank or
trust company to the Corporation.
  8
  If a
notice of redemption has been given pursuant to this section 5 and any holder of
shares of Convertible Preferred Stock shall, prior to the close of business on
the day preceding the Redemption Date, given written notice to the corporation
pursuant to Section 7 below of the conversion of any or all of the shares to be
redeemed held by such holder (accompanied by a certificate or certificates for
such shares, duly endorsed or assigned to the Corporation, and any necessary
transfer tax payment, as required by Section 7 below), then such redemption
shall not become effective as to such shares to be converted, such conversion
shall become effective as provided in Section 7 below, and any moneys set aside
by the Corporation for the redemption of such shares of converted Convertible
Preferred Stock shall revert to the general funds of the
Corporation.
  Section
6. Shares
to Be Retired. All shares of Convertible Preferred Stock which shall have
been issued and reacquired in any manner by the Corporation (excluding, until
the corporation elects to retire them, shares which are held as treasury shares)
shall be restored to the status of authorized but unissued shares of Preferred
Stock, without designation as to series.
  Section
7. Conversion.
Holders of shares of Convertible Preferred Stock shall have the right to convert
all or a portion of such shares into shares of Common Stock, as
follows:
  (A)
Subject to and upon compliance with the provisions of this Section 7, a holder
of shares of Convertible Preferred Stock shall have the right, at his or her
option, at any time after the Issue Date, to convert such shares into the number
of fully paid and nonassessable shares of Common Stock obtained by dividing the
aggregate Stated Value of such shares by the Conversion Price (as in effect on
the date provided for in the last paragraph of paragraph (B) of this Section 7)
by surrendering such shares to be converted, such surrender to be made in the
manner provided in paragraph (B) of this Section 7; provided, however, that the right to
convert shares called for redemption pursuant to Section 5 shall terminate at
the close of business on the date preceding the Redemption Date, unless the
corporation shall default in making payment of the cash payable upon such
redemption under Section 5 hereof. Certificates will be issued for the remaining
shares of Convertible Preferred Stock in any case in which fewer than all of the
shares of Convertible Preferred Stock represented by a certificate are
converted.
  (B) In
order to exercise the conversion right, the holder of shares of Convertible
Preferred Stock to be converted shall surrender the certificate or certificates
representing such shares, duly endorsed or assigned to the Corporation or in
blank, at the office of the Transfer Agent in the Borough of Manhattan, City of
New York, accompanied by written notice to the Corporation that the holder
thereof elects to convert
Convertible Preferred Stock. Unless the shares issuable on conversion are to be
issued in the same name as the name in which such share of Convertible Preferred
Stock is registered, each share surrendered for conversion shall be accompanied
by instruments of transfer, in the form satisfactory to the Corporation, duly
executed by the holder or such holder's duly authorized attorney and an amount
sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Corporation demonstrating that such taxes have been
paid).
  9
  Holders
of shares of Convertible Preferred Stock at the close of business on a dividend
payment record date shall be entitled to receive the dividend payable on such
shares on the corresponding Dividend Payment Date notwithstanding the conversion
thereof following such dividend payment record date and prior to such Dividend
Payment Date. However, shares of Convertible Preferred Stock surrendered for
conversion during the period between the close of business one any dividend
payment record date and the opening of business on the corresponding Dividend
Payment Date (except shares converted after the issuance of a notice of
redemption with respect to a Redemption Date during such period, which shall be
entitled to the benefit of such dividend on the Dividend Payment Date) must be
accompanied by payment of an amount equal to the dividend payable on such shares
on such Dividend Payment Date. A holder of shares of Convertible Preferred Stock
on a dividend payment record date who (or whose transferee) tenders any such
shares for conversion into shares of Common Stock on such Dividend Payment Date
will receive the dividend payable by the Corporation on such shares of
Convertible Preferred Stock on such date, and the converting holder need not
include payment of the amount of such dividend upon surrender of shares of
Convertible Preferred Stock for conversion. Except as provided above, the
Corporation shall make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the shares of Common
Stock issued upon such conversion.
  As
promptly as practicable after the surrender of certificates for shares of
Convertible Preferred Stock as aforesaid, the Corporation shall issue and
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with the provisions of
this Section 7, and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided in paragraph (C)
of this Section 7.
  Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which the certificates for shares of Convertible
Preferred Stock shall have been surrendered and such notice (and if applicable
payment of an amount equal to the dividend payable on such shares) received by
the Corporation as aforesaid, and the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares
represented thereby at such time on such date and such conversion shall be at
the Conversion Price in effect at such time on such date, unless the stock
transfer books of the Corporation shall be closed on that date, in which event
such person or persons shall be deemed to have become such holder or holders of
record at the close of business on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price in
effect on the date upon which such shares shall have been surrendered and such
notice received by the Corporation.
  10
  (C) No
fractional shares or scrip representing fractions of shares of Common Stock
shall be issued upon conversion of the Convertible Preferred Stock. Instead of
any fractional interest in a share of Common Stock that would otherwise be
deliverable upon the conversion of a share of Convertible Preferred Stock, the
Corporation shall pay to the holder of such share an amount in cash based upon
the Current Market Price of Common Stock on the Trading Day immediately
preceding the date of conversion. If more than one share shall be surrendered
for conversion at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of Convertible Preferred Stock so
surrendered.
  (D) The
Conversion Price shall be adjusted from time to time as follows:
  (i) If
the Corporation shall after the Issue Date (A) pay a dividend or make a
distribution on its capital stock in shares of its Common Stock, (B) subdivide
its outstanding Common Stock into a greater number of shares, (C) combine its
outstanding Common Stock into a smaller number of shares or (D)issue any shares of capital stock
by reclassification of its Common Stock, the Conversion Price in effect at the
opening of business on the day next following the date fixed for the
determination of stockholders entitled to receive such dividend or distribution
or at the opening of business on the day next following the day on which such
subdivision, combination or reclassification becomes effective, as the case may
be, shall be adjusted so that the holder of any share of Convertible Preferred
Stock thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock that such holder would have owned or have been
entitled to receive after the happening of any of the events described above had
such share been converted immediately prior to the record date in the case of a
dividend or distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening of
business on the day next following the record date (except as provided in
paragraph (H)below) in the case of a dividend or distribution and shall become
effective on the day next following the effective date in the case of a
subdivision, combination or reclassification.
  11
  (ii) If
the Corporation shall issue after the Issue Date rights or warrants (in each
case, other than the Rights) to all holders of Common Stock entitling them (for
a period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase Common Stock or Securities which are convertible into
Common Stock at a price per share less than the Fair Market Value per share of
Common Stock on the record date for the determination of stockholders entitled
to receive such rights or warrants, then the Conversion Price in effect at the
opening of business on the day next following such record date shall be adjusted
to equal the price determined by multiplying (I) the Conversion Price in effect
immediately prior to the opening of business on the day next following the date
fixed for such determination by (II) a fraction, the numerator of which shall be
the sum of (A) the number of shares of Common Stock outstanding on the close of
business on the date fixed for such determination and (B) the number of shares
that the aggregate proceeds to the Corporation from the exercise of such rights
or warrants for Common Stock would purchase at such Fair Market Value, and the
denominator of which shall be the sum of (A) the number of shares of Common
Stock outstanding on the close of business on the date fixed for such
determination and (B) the number of additional shares of Common Stock offered
for subscription or purchase pursuant to such rights or warrants Such adjustment
shall become effective immediately after the opening of business on the day next
following such record date (except as provided in paragraph (H) below). In
determining whether any rights or warrants entitle the holders of Common Stock
to subscribe for or purchase shares of Common Stock at less than such Fair
Market Value, there shall be taken into account any consideration received by
the Corporation upon issuance and upon exercise of such rights or warrants, the
value of such consideration, if other than cash, to be determined by valuation
of the Board of Directors.
  (iii) If
the Corporation shall distribute to all holders of its Common Stock any shares
of capital stock of the Corporation (other than Common Stock) or evidence of its
indebtedness or assets (excluding any cash dividends or distributions paid from
profits or surplus of the Corporation or referred to in subparagraph (i) above
or any stock, securities or other property received pursuant to paragraph 7(E)
below) or rights or warrants (in each case, other than the Rights) to subscribe
for or purchase any of its securities (excluding those rights and warrants
issued to all holders of Common Stock entitling them for a period expiring
within 45 days after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Stock, which rights and warrants are referred
to in and treated under subparagraph (ii) above) (any of the foregoing being
hereinafter in this subparagraph (iii) called the "Securities"), then in each
such case the Conversion Price shall be adjusted so that it shall equal the
price determined by multiplying (I) the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by (II) a fraction, the
numerator of which
shall be the Fair Market Value per share of the Common Stock on the record date
mentioned below less the then Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of the
capital stock or assets or evidences of indebtedness so distributed or of such
rights or warrants applicable to one share of Common Stock, and the denominator
of which shall be the Fair Market Value per share of the Common Stock on the
record date mentioned below. Such adjustment shall become effective immediately
at the opening of business on the Business Day next following (except as
provided in paragraph (H) below) the record date for the determination of
shareholders entitled to receive such distribution. For the purposes of this
subparagraph (iii), the distribution of a Security, which is distributed not
only to the holders of the Common Stock on the date fixed for the determination
of stockholders entitled to such distribution of such Security, but also is
distributed to the holders of the Convertible Preferred Stock (assuming for
purposes of this subparagraph (iii) that such shares of Convertible Preferred
Stock have been converted) or reserved for distribution with each share of
Common Stock delivered to a person converting a share of Convertible Preferred
Stock after such determination date, shall not require an adjustment of the
Conversion Price pursuant to this subparagraph (iii); provided
that on the date, if any, on which a Person converting a share of Convertible
Preferred Stock would no longer be entitled to receive such Security with a
share of Common Stock (other than as a result of the termination of all such
Securities), a distribution of such Securities shall be deemed to have occurred
and the Conversion Price shall be adjusted as provided in this subparagraph
(iii) (and such day shall be deemed to be "the date fixed for the determination
of the stockholders entitled to receive such distribution" and "the record date"
within the meaning of the two preceding sentences).
  12
  (iv) No
adjustment in the Conversion Price shall be required unless such adjustment
would require a cumulative increase or decrease of at least 1% in such price;
provided,
however, that any adjustments that by reason of this subparagraph (iv)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment until made; and provided,
further, that any adjustment shall be required and made in accordance
with the provisions of this Section 7 (other than this subparagraph (iv)) not
later than such time as may be required in order to preserve the tax-free nature
of a distribution to the holders of shares of Common Stock. Notwithstanding any
other provisions of this Section 7, the Corporation shall not be required to
make any adjustment of the Conversion Price for the issuance of any shares of
Common Stock pursuant to any plan providing for the reinvestment of dividends in
securities of the Corporation. All calculations under this Section 7 shall be
made to the nearest cent (with $.005 being rounded upward) or to the nearest
1/10 of a share (with .05 of a share being rounded upward), as the case may be.
Anything in this paragraph (D) to the contrary notwithstanding, the Corporation
shall be entitled, to the
extent permitted by law, to make such reductions in the Conversion Price, in
addition to those required by this paragraph (D),as it in its discretion shall determine to be advisable in order that any
stock dividends, subdivision of shares, reclassification or combination of
shares, distribution of rights or warrants to purchase stock or securities, or a
distribution of other assets (other than cash dividends) hereafter made by the
Corporation to its stockholders shall not be taxable.
  (v)
Anything in this paragraph (D) to the contrary not withstanding, no adjustment
in the Conversion Price shall be required upon the issuance of any shares of
Common Stock to holders of the LYONs, upon the conversion or redemption thereof,
if any, in the case of any adjustment in the conversion rate for the LYONs, or
in the case of any exchange of shares of Common Stock for LYONs.
  13
  (E) If
the Corporation shall be a party to any transaction (including without
limitation a merger, consolidation, sale of all or substantially all of the
Corporation's assets or recapitalization of the Common Stock and excluding any
transaction as to which subparagraph (D)
(i)of this Section 7 applies) (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which shares of Common
Stock shall be converted into the right to receive stock, securities or other
property (including cash or any combination thereof), each share of Convertible
Preferred Stock which is not converted into the right to receive stock,
securities or other property in connection with such Transaction shall
thereafter be convertible into the kind and amount of shares of stock,
securities and other property (including cash or any combination thereof)
receivable upon the consummation of such Transaction by a holder of that number
of shares or fraction thereof of Common Stock into which one share of
Convertible Preferred Stock was convertible immediately prior to such
Transaction, assuming such holder of Common Stock (i) is not a Person with which
the Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such sale or transfer was made, as the
case may be ("Constituent Person"), or an affiliate of a Constituent Person and
(ii) failed to exercise his or her rights of election, if any, as to the kind or
amount of stock, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of stock, securities and
other property (including cash) receivable upon such Transaction is not the same
for each share of Common Stock of the Corporation held immediately prior to such
Transaction by other than a Constituent Person or an affiliate thereof and in
respect of which such rights of election shall not have been exercised
("non-electing share"), than for the purpose of this paragraph (E)the kind and amount of stock, securities and other property (including
cash) receivable upon such Transaction by each non-electing share shall be
deemed to be the kind and amount so receivable per share by the plurality of the
non-electing shares). The Corporation shall not be a party to any Transaction
unless the terms of such Transaction are consistent with the provisions of this
paragraph (E) and it shall not consent or agree to the occurrence of any
Transaction until the Corporation has entered into an agreement with the
successor or purchasing entity, as the case may be, for the benefit of the
holders of the Convertible Preferred Stock that will contain provisions enabling
the holders of the Convertible Preferred Stock that remains outstanding after
such Transaction to convert into the consideration received by holders of Common
Stock at the Conversion Price in effect immediately prior to such Transaction.
The provisions of this paragraph (E) shall similarly apply to successive
Transactions.
  14
  (F)
If:
  (i) the
Corporation shall declare a dividend (or any other distribution) on the Common
Stock (other than in cash out of profits or surplus and other than the Rights);
or
  (ii) the
Corporation shall authorize the granting to the holders of the Common Stock of
rights or warrants (other than the Rights) to subscribe for or purchase any
shares of any class or any other rights or warrants (other than the Rights);
or
  (iii)
there shall be any reclassification of the Common Stock (other than an event to
which subparagraph (D)(i) of this Section 7 applies) or any consolidation or merger to which
the Corporation is a party and for which approval of any stockholders of the
Corporation is required, or the sale or transfer of all or substantially all of
the assets of the Corporation as an entirety; or
  (iv)
there shall occur the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation,
  then the
Corporation shall cause to be filed with the Transfer Agent and shall cause to
be mailed to the holders of shares of the Convertible Preferred Stock at their
address as shown on the stock records of the Corporation, as promptly as
possible, but at least 15 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights or warrants, or, if a
record is not to be taken, the date on which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights or warrants are
to be determined or (B) the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution or winding p is expected to
become effective, and the date on which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock for
securities or other property, if any, deliverable upon such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution or winding up.
Failure to give or receive such notice or any defect therein shall not affect
the legality or validity of the proceedings described in this Section
7.
  15
 
 (G)
Whenever the Conversion Price is adjusted as herein provided, the Corporation
shall promptly file with the Transfer Agent an officer's certificate setting
forth the Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment which certificate shall be
prima facie evidence of the correctness of such adjustment. Promptly after
delivery of such certificate, the Corporation shall prepare a notice of such
adjustment of the Conversion Price setting forth the adjusted Conversion Price
and the effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Convertible
Preferred Stock at such holder's last address as shown on the stock records of
the Corporation.
  (H) In
any case in which paragraph (D) of this Section 7 provides that an adjustment
shall become effective on the day next following a record date for an event, the
Corporation may defer until the occurrence of such event (A) issuing to the
holder of any share of Convertible Preferred Stock converted after such record
date and before the occurrence of such event the additional shares of Common
Stock issuable upon such conversion by reason of the adjustment required by such
event over and above the Common Stock issuable upon such conversion before
giving effect to such adjustment and (B) paying to such holder any amount in
cash in lieu of any fraction pursuant to paragraph (C) of this Section
7.
  (I) For
purposes of this Section 7, the number of shares of Common Stock at any time
outstanding shall not include any shares of Common Stock then owned or held by
or for the account of the Corporation. The Corporation shall not pay a dividend
or make any distribution on shares of Common Stock held in the treasury of the
Corporation.
  (J) There
shall be no adjustment of the Conversion Price in case of the issuance of any
stock of the Corporation in a reorganization, acquisition or other similar
transaction except as specifically set forth in this Section 7. If any action or
transaction would require adjustment of the Conversion Price pursuant to more
than one paragraph of this Section 7, only one adjustment shall be made and such
adjustment shall be the amount of adjustment that has the highest absolute value
to the holders of Convertible Preferred Stock as determined by the Board of
Directors.
  (K) If
the Corporation shall take any action affecting the Common Stock, other then
action described in this Section 7, that in the opinion of the Board of
Directors would materially adversely affect the conversion rights of the holders
of the shares of Convertible Preferred Stock, the Conversion Price for the
Convertible Preferred Stock may be adjusted, to the extent permitted by law, in
such manner, if any, and at such time, as the Board of Directors may determine
to be equitable in the circumstances.
  16
  (L) The
Corporation covenants that it will at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
shares of Common Stock or its issued shares of Common Stock held in its
treasury, or both, for the purpose of effecting conversion of the Convertible
Preferred Stock, the full number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of Convertible Preferred Stock not
theretofore converted. For purposes of this paragraph (L), the number of shares
of Common Stock that shall be deliverable upon the conversion of all outstanding
shares of Convertible Preferred Stock shall be computed as if at the time of
computation all such outstanding shares were held by a single
holder.
  The
Corporation covenants that any shares of Common Stock issued upon conversion of
the Convertible Preferred Stock shall be validly issued, fully paid and
non-assessable. Before taking any action that would cause an adjustment reducing
the Conversion Price below the then-par value of the shares of Common Stock
deliverable upon conversion of the Convertible Preferred Stock, the Corporation
will take any corporate action that in the opinion of its counsel, may be
necessary in order that the Corporation may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Conversion
Price.
  The
Corporation shall endeavor to list the shares of Common Stock required to be
delivered upon conversion of the Convertible Preferred Stock, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Stock is listed at the time of such delivery.
  Prior to
the delivery of any securities that the Corporation shall be obligated to
deliver upon conversion of the Convertible Preferred Stock, the Corporation
shall endeavor 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.
  (M) The
Corporation will pay any and all documentary, stamp or similar issue or transfer
taxes payable in respect of the issue or delivery of shares of Common Stock or
other securities or property on conversion of the Convertible Preferred Stock
pursuant hereto; provided,
however, that the Corporation shall not be required to pay any tax that
may be payable in respect of any transfer involved in the issue or payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock or other securities or property in a name other than that of the holder of
the Convertible Preferred Stock to be converted and no such issue or delivery
shall be made unless and until the person requesting any issue or delivery has
paid to the Corporation the amount of any such tax or established, to the
reasonable satisfaction of the Corporation, that such tax has been
paid.
  17
  Section
8. Ranking.
Any class or series of stock of the Corporation shall be deemed to
rank:
  (A) prior
to the Convertible Preferred Stock, as to the payment of dividends and as to
distributions of assets upon liquidation, dissolution or winding up, if the
holders of such class or series shall be entitled to the receipt of dividends
and of amounts distributed upon liquidation, dissolution or winding up in
preference or priority to the holders of Convertible Preferred
Stock;
  (B) on a
parity with the Convertible Preferred Stock, as to the payment of dividends and
as to distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Convertible
Preferred Stock if the holders of such class of stock or series and the
Convertible Preferred Stock shall be entitled to the receipt of dividends and of
amounts distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
Liquidation Preferences, without preference or priority one over the other;
and
  (C)
junior to the Convertible Preferred Stock, as to the payment of dividends or as
to the distribution of assets upon liquidation, dissolution or winding up, if
such stock or series shall be Common Stock or Series A Preferred Shares or if
the holders of Convertible Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon liquidation, dissolution or winding
up in preference or priority to the holders of shares of such stock or
series.
  Section
9. Voting.
(A) Unless the affirmative vote of the holders of a greater number of shares
shall then be required by law, the affirmative vote of the holders of at least
66-2/3% of all of the outstanding shares of Convertible Preferred Stock, given
in person or by proxy, by a vote at a meeting called for the purpose voting
separately as a class, shall be necessary for authorizing, effecting or
validating the amendment, alteration or repeal of any of the provisions of the
Certificate of Incorporation or of any certificate amendatory thereof or
supplement thereto (including any Certificate of Designations, Preferences and
rights or any similar document relating to any series of Preferred Stock) which
would materially adversely affect the preferences, rights, powers or privileges
of the Convertible Preferred Stock; provided,
however, that the amendment of the provisions of the Certificate of
Incorporation so as to authorize or create, or to increase the authorized amount
of, any Junior Stock or Parity Stock shall not be deemed to materially adversely
affect the preferences, rights, powers or privileges of Convertible Preferred
Stock.
  18
  (B)
Unless the affirmative vote or consent of the holders of a greater number of
shares shall then be required by law, the consent of the holders of at least
66-2/3% of all of the outstanding shares of Convertible Preferred Stock and all
other series of Parity Stock upon which such voting power shall have been
conferred, given in person or by proxy, by a vote at a meeting called for the
purpose at which the holders of shares of Convertible Preferred Stock and such
Parity Stock shall vote together as a single class without regard to series,
shall be necessary for authorizing, effecting or validating the creation,
authorization or issue of any shares of any class of Preferred Stock as to
dividends or upon liquidation, dissolution or winding up, or the
reclassification of any authorized stock of the Corporation into any such prior
shares, or the creation, authorization or issuance of any obligation or security
convertible into or evidencing the right to purchase any such prior
shares.
  (C) If at
the time of any annual meeting of stockholders for the election of directors the
Corporation shall be in default on preference dividends (as defined below) on
the Convertible Preferred Stock and any other Parity Stock, the number of
directors constituting the Board of Directors of the Corporation shall be
increased by two, and the holders of the Convertible Preferred Stock together
with the holders of such other Parity Stock upon which such voting power shall
have been conferred shall have the right at such meeting (and any subsequent
meeting if such default shall continue to exist), voting together as a single
class without regard to series, to the exclusion of the holders of Common Stock,
to elect two additional directors (the "Preferred Directors") of the Corporation
to fill such newly created directorships. Such right shall continue until there
are no dividends in arrears upon the Convertible Preferred Stock. Any Preferred
Director may be removed without cause by, and shall not be removed without cause
except by, the vote of the holders of record of the outstanding shares of
Convertible Preferred Stock and Parity Stock with respect to which such a
default shall exist, voting together as a single class without regard to series,
at a meeting of the stockholders, or of the holders of shares of such stock as
to which a default exists, called for the purpose. So long as a default in any
preference dividends on such stock shall exist, (a) any vacancy in the office of
a Preferred Director may be filled (except as provided in the following clause
(b)) pursuant to an instrument in writing signed by the remaining Preferred
Director and filed with the Corporation and (b) in the case of the removal of
any Preferred Director, the vacancy may be filled by the vote of the holders of
the outstanding shares of Convertible Preferred Stock and Parity Stock with
respect to which such a default shall exist, voting together as a single class
without regard to series, at the same meeting at which such removal shall be
voted. Each director appointed as aforesaid by the remaining Preferred Director
shall be deemed, for all purposes hereof, to be a Preferred director. Whenever a
default in preference dividends shall no longer exist, the term of office of
each Preferred Director shall terminate forthwith and the number of directors
constituting the Board of Directors of the Corporation shall be reduced by two.
For the purposes hereof, a "default on preference dividends" on the Convertible
Preferred Stock or Parity Stock shall be deemed to exist whenever
the equivalent of six quarterly dividends have not been declared and paid or set
apart for payment, whether or not consecutive, and, having so occurred, such
default shall be deemed to exist thereafter until, but only until, all accrued
dividends on all shares of Convertible Preferred Stock or Parity Stock of each
and every series then outstanding shall have been declared and paid or set apart
for payment to the end of the last preceding dividend period.
  19
  (D) For
purposes of the foregoing provisions of this Section 9, each share of
Convertible Preferred Stock shall have one (1) vote per share. Except as
otherwise required by applicable law or as set forth herein, the shares of
Convertible Preferred Stock shall not have any relative, participating, optional
or other special voting rights and powers and the consent of the holders thereof
shall not be required for the taking of any corporate action.
  Section
10. Determinations
by the Board of Directors. Any determinations made in good faith by the
Board of Directors of the Corporation under any provision of this Certificate of
Designations, Preferences and Rights shall be final and binding on all
stockholders (including holders of shares of Convertible Preferred Stock) of the
Corporation.
  Section
11. Record
Holders. The Corporation and the Transfer Agent may deem and treat the
record holder of any shares of Convertible Preferred Stock as the true and
lawful owner thereof for all purposes, and neither the Corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
  IN
WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to
be made under the seal of the Corporation and signed and attested by its duly
authorized officers this 8th
day of August 2006.
  HECLA
      HOLDINGS INC.
                  
                  By: /s/
      Phillips S. Baker, Jr.
                  Phillips
      S. Baker, Jr.
                  President
      and CEO[Corporate
      Seal]
                  
                  ATTEST:By:/s/
      Philip C. Wolf
                    Philip
      C. Wolf

                      Corporate
      Secretary
 
 20
 
  State
      of Delaware

                    Secretary
      ofState
                    Division
      of Corporations
                    Delivered
      12:17 PM 11/06/2006
                    FILED
      12:18 PM 11/06/2006
                    SRV
      061015914 - 4194766
FILE
 CERTIFICATE
OF AMENDMENT
 OF
 CERTIFICATE
OF INCORPORATION
 OF
 HECLA
HOLDINGS INC.
  Pursuant
to Section 242(b)(I) of the General Corporation Law of Delaware, the undersigned
duly authorized officers of Hecla Holdings Inc., a Delaware corporation (the
"Corporation"), do hereby depose, certify and say that the following amendment
to the Certificate of Incorporation of Hecla Holdings Inc. has been duly adopted
in accordance with the provisions of Section 242 of the General Corporation Law
of Delaware:
  ARTICLE
I.
  Name
  The
name of the Corporation shall be HECLA MINING COMPANY.
  In
accordance with Section 222 of the General Corporation Law, notice of a special
meeting was sent to the sole shareholder of the Corporation on October 23, 2006.
The sole shareholder of the Corporation waived notice of a special meeting and
voted in favor of the amendment.
  This amendment was duly
adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of
Delaware.
  IN WITNESS WHEREOF, Hecla
Holdings
Inc. has caused this Certificate ofAmendment
to be executed, acknowledged, filed and recorded with the Secretary of State in
theState of
Delaware.
 /s/
      Philip C. Wolf
                    Philip
      C. Wolf Date
                    Vice
      President
                  
                  November
      6, 2006
                    Date
  1
  STATE OF
    IDAHO
              )) ss.County of
      Kootenai
              )
  On this
6th
day of November 2006, before me, the undersigned, a Notary Public in and for the
state of Idaho, personally appeared Philip C. Wolf, known or identified to me to
be the Vice President of Hecla Holdings Inc., the officer who executed the
instrument on behalf of said corporation, and acknowledged to me that such
corporation executed the same.
  IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year in this certificate first above written.
 /s/ Tami D. Hansen

                        Notary Public in and for the state of Idaho
                        Residing at Otis Orchards, Washington
                        My Commission Expires:
9/12/2009
 2
 State of Delaware
 Secretary of State
 Division of
Corporations
 Delivered 01:16 PM
11/08/2006
 FILED 01:16 PM
11/08/2006
 SRV 061023685 - 4194766
FILE
 STATE
OF DELAWARE
 CERTIFICATE
OF CORRECTION
  Hecla
Mining Company, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware.
  DOES
HEREBY CERTIFY:
 
 1.The
name of the corporation is Hecla Mining Company.
 
 2.That
a Certificate of Amendment of Certificate of Incorporation of Hecla Holdings
Inc. changing it's name to Hecla Mining Company was filed by the Secretary of
State of Delaware on November 6, 2006, and that said Certificate of Amendment of
Certificate of Incorporation of Hecla Mining Company requires correction as
permitted by Section 103 of the General Corporation Law of the State of
Delaware.
 
 3.The
inaccuracy or defect of said Certificate of Amendment of Certificate of
Incorporation of Hecla Mining Company is that this document was not intended to
be filed on November 6, 2006. The Certificate of Amendment of Certificate of
Incorporation of Hecla Holdings Inc. is hereby rendered null and
void.
  IN WITNESS WHEREOF, said corporation has caused
this Certificate of Correction this 8th
day of November 2006.
 HECLA MINING COMPANY
                        
                        /s/ Philip C. Wolf
                        Philip C. Wolf
                        Vice President
 1
 
 State
of Delaware
 Secretary
ofState
 Division
of Corporations
 Delivered
02:25 PM 11/08/2006
 FILED
02:22 PM 11/08/2006
 SRV
061024511 - 4194766 FILE
 
 CERTIFICATE
OF AMENDMENT
 OF
 CERTIFICATE
OF INCORPORATION
 OF
 HECLA
HOLDINGS INC.
  Pursuant
to Section 242(b)(1) of the General Corporation Law of Delaware, the undersigned
duly authorized officers of Hecla Holdings Inc., a Delaware corporation (the
"Corporation"), do hereby depose, certify and say that the following amendment
to the Certificate of Incorporation of Hecla Holdings Inc. has been duly adopted
in accordance with the provisions of Section 242 of the General Corporation Law
of Delaware:
  ARTICLE
I.
  Name
  The name
of the Corporation shall be HECLA MINING COMPANY.
  In
accordance with Section 222 of the General Corporation Law, notice of a special
meeting was sent to the sole shareholder of the Corporation on October 23, 2006.
The sole shareholder of the Corporation waived notice of a special meeting and
voted in favor of the amendment.
  This
amendment was duly adopted in accordance with the provisions of Section 242 of
the General Corporation Law of the State of Delaware.
  IN
WITNESS WHEREOF, Hecla Holdings Inc. has caused this Certificate of Amendment to
be executed, acknowledged, filed and recorded with the Secretary of State in the
State of Delaware.
 /s/
      Philip C. Wolf
                          Philip
      C. Wolf
                          Vice
      President
                      
                      November 8, 2006
                        Date
 
 1
 STATE OF
    IDAHO
                )) ss.County of
      Kootenai
                )
 
 On this
8th day
of November 2006, before me, the undersigned, a Notary Public in and for the
state of Idaho, personally appeared Philip C. Wolf, known or identified to me to
be the Vice President of Hecla Holdings Inc., the officer who executed the
instrument on behalf of said corporation, and acknowledged to me that such
corporation executed the same.
  IN
WITNESS WHEREOF, I have hereunto set my hand and
affixed my notarial sealthe day and year in this certificate first above
written.
 /s/ Tami D. Hansen

                          Notary Public in and for the state of Idaho
                          Residing at Otis Orchards, Washington
                          My Commission Expires:
9/12/2009
 2
  Exhibit
      3.1
 State
      of Delaware
                    Secretary
      ofState
                  Division
      of Corporations
                  Delivered
      06:56 PM12/14/2007
                  FILED
      06:50 PM12/14/2007
                  SRV
      071327022 - 4194766 FILE
  CERTIFICATE
OF DESIGNATIONS OF
  6.5%
MANDATORY CONVERTIBLE PREFERRED STOCK
  of
  HECLA
MINING COMPANY.
  Pursuant
to Section 151 of the General Corporation Law
 of the
State of Delaware
  The
undersigned, Philip C. Wolf, Senior Vice President and General Counsel of Hecla
Mining Company, a Delaware corporation (hereinafter called the "Corporation"),does hereby
certify that the Board of Directors of the Corporation (the "Board of Directors"),pursuant to the provisions of Sections 103 and 151 of the General
Corporation Law of the State of Delaware, hereby makes this Certificate of
Designations (this "Certificate")and hereby
states and certifies that pursuant to the authority expressly vested in the
Board of Directors by the Certificate of Incorporation of the Corporation (as
such may be amended, modified or restated from time to time, the "Certificate of Incorporation"),the Board of Directors duly adopted the following
resolutions:
  RESOLVED,
that, pursuant to Article IV of the Restated Certificate of Incorporation (which
authorizes 5,000,000 shares of Preferred Stock, par value $0.25 per share (the
"PreferredStock")),and the authority
conferred on the Board of Directors, the Board of Directors hereby fixes the
powers, designations, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions, of a
series of Preferred Stock.
  RESOLVED,
that each share of such series of new Preferred Stock shall rank equally in all
respects and shall be subject to the following provisions:
  (1)Number and
Designation.Two million twelve thousand five hundred (2,012,500) shares
(including up to 262,500 shares subject to the underwriters' over-allotment
option) of the Preferred Stock of the Corporation shall be designated as "6.5%
Mandatory Convertible Preferred Stock" (the "Mandatory Convertible Preferred
Stock").
  (2)Certain
Definitions.As used in this Certificate, the following terms shall have
the meanings defined in this Section 2:
  "Affiliate"shall have the meaning given to that term in Rule 405 of the Securities
Act of 1933, as amended, or any successor rule thereunder.
  "Agent Members"shall have the
meaning set forth in Section 18(a).
  "Applicable Market Value"means the average of the Closing Prices per share of Common Stock over
the 20 consecutive Trading Day period ending on the third Trading Day
immediately preceding the Mandatory Conversion Date or the Provisional
Conversion Date, as applicable.
  1
 "Board of Directors"shall
have the meaning set forth in the recitals.
  "Business Day"means any day
other than a Saturday or Sunday or any other day on which commercial banks in
New York City are authorized or required by law or executive order to
close.
  A "Cash Acquisition"will be
deemed to have occurred at such time after the Issue Date that there is the
consummation of any acquisition (whether by means of a liquidation, share
exchange, tender offer, consolidation, recapitalization, reclassification,
merger of the Corporation or any sale, lease or other transfer of the
Corporation's and its subsidiaries' consolidated assets) or a series of related
transactions or events pursuant to which 90% or more of the Common Stock is
exchanged for, converted into or constitutes solely the right to receive cash,
securities or other property, and more than 10% of the cash, securities or other
property consists of cash, securities or other property that is not, or upon
issuance shall not be, traded on the New York Stock Exchange or quoted on the
Nasdaq Global Select Market or the Nasdaq Global Market (or their respective
successors).
  "Cash Acquisition Conversion"shall have the meaning set forth in Section 10(a).
  "Cash Acquisition Conversion
Additional Conversion Amount"shall have the meaning set forth in Section
l0(c)(ii).
  "Cash Acquisition Conversion Date"means the effective date of any Cash Acquisition Conversion of Mandatory
Convertible Preferred Stock pursuant to Section 10.
  "Cash Acquisition Conversion Period"shall have the meaning set forth in Section 10(a).
  "Cash Acquisition Conversion Rate"means the conversion rate set forth in the table below for the applicable
Effective Date and the applicable Stock Price applicable to Cash Acquisition
Conversions during the Cash Acquisition Conversion Period:
  Stock
      Price on Effective DateEffective
      Date
                $2.00
                $4.00
                $6.00
                $8.00
                $9.70
                $10.77
                $11.83
                $14.00
                $16.00
                $18.00
                $20.00
                $25.00
                $30.00December
      18, 2007
                9.8651
                9.2917
                8.9006
                8.6721
                8.5568
                8.5079
                8.4715
                8.4237
                8.3988
                8.3847
                8.3769
                8.3708
                8.3717January
      1, 2009
                10.1118
                9.6760
                9.2186
                8.8966
                8.7191
                8.6408
                8.5813
                8.5014
                8.4588
                8.4338
                8.4191
                8.4045
                8.4017January
      1, 2010
                10.2320
                10.1104
                9.7159
                9.2722
                8.9747
                8.8348
                8.7269
                8.5834
                8.5107
                8.4708
                8.4493
                8.4301
                8.4266January
      1, 2011
                10.3093
                10.3093
                10.3093
                10.3093
                10.3093
                9.2876
                8.4502
                8.4502
                8.4502
                8.4502
                8.4502
                8.4502
                8.4502
 
  If the
Stock Price falls between two Stock Prices set forth in the table above, or if
the Effective Date falls between two Effective Dates set forth in the table
above, the Cash Acquisition Conversion Rate shall be determined by straight-line
interpolation between the Cash Acquisition Conversion Rates set forth for the
higher and lower Stock Prices and Effective Dates, as applicable, based on a
365-day year.
  If the
Stock Price is in excess of $30.00 per share (subject to adjustment), then the
Cash Acquisition Conversion Rate shall be the Minimum Conversion Rate. If the
Stock Price is less than $2.00 per share (subject to adjustment), then the Cash
Acquisition Conversion Rate shall be the Maximum Conversion Rate.
  2
 The Stock
Prices in the column headings in the table above are subject to adjustment in
accordance with the provisions of Section 15(c)(iii). The conversion rates set
forth in the table above are each subject to adjustment in the same manner as
each Fixed Conversion Rate as set forth in Section 15.
  "Cash Acquisition Dividend Make-Whole
Amount"shall have the meaning set forth in Section
10(c)(i)(B).
  "Cash Acquisition Notice"shall have the meaning set forth in Section 10(b). "Certificate"shall have the
meaning set forth in the recitals.
  "Closing Price"of the Common
Stock or any securities distributed in a Spin-Off, as the case may be, means, as
of any date of determination:
  (a) the closing
price on that date or, if no closing price is reported, the last reported sale
price, of shares of the Common Stock or such other securities on the New York
Stock Exchange on that date; or
  (b) if the Common
Stock or such other securities are not traded on the New York Stock Exchange,
the closing price on that date as reported in composite transactions for the
principal U.S. national or regional securities exchange on which the Common
Stock or such other securities are so traded or, if no closing price is
reported, the last reported sale price of shares of the Common Stock or such
other securities on the principal U.S. national or regional securities exchange
on which the Common Stock or such other securities are so traded on that date;
or
  (c) if the Common
Stock or such other securities are not traded on a U.S. national or regional
securities exchange, the last quoted bid price on that date for the Common Stock
or such other securities in the over-the-counter market as reported by Pink
Sheets LLC or a similar organization; or
  (d) if the Common
Stock or such other securities are not so quoted by Pink Sheets LLC or a similar
organization, the market price of the Common Stock or such other securities on
that date as determined by a nationally recognized independent investment
banking firm retained by the Corporation for this purpose.
  For the
purposes of this Certificate, all references herein to the closing price and the
last reported sale price of the Common Stock on the New York Stock Exchange
shall be such closing price and last reported sale price as reflected on the
website of the New York Stock Exchange (www.nyse.com) and as
reported by Bloomberg Professional Service; providedthat in the event that there is a discrepancy between the closing price
and the last reported sale price as reflected on the website of the New York
Stock Exchange and as reported by Bloomberg Professional Service, the closing
price and the last reported sale price on the website of the New York Stock
Exchange shall govern.
  "Common Stock"as used in this
Certificate means the Corporation's common stock, par value $0.25 per share, as
the same exists at the date of filing of this Certificate relating to the Mandatory
Convertible Preferred Stock, or any other class of stock resulting from
successive changes or reclassifications of such common stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value.
  3
 "Conversion Date"shall have
the meaning set forth in Section 4(d).
  "Corporate Trust Office"means
the principal corporate trust office of the Transfer Agent at which, at any
particular time, its corporate trust business shall be
administered.
  "Corporation"shall have the
meaning set forth in the recitals.
  "Current Market Price"per
share of Common Stock on any date means for the purposes of determining an
adjustment to the Fixed Conversion Rate:
  (a) for
purposes of adjustments pursuant to Section 15(a)(ii), Section 15(a)(iv)(A) in
the event of an adjustment not relating to a Spin-Off, and Section 15(a)(v), the
average of the Closing Prices over the five consecutive Trading Day period
ending on the Trading Day preceding the Ex-Date with respect to the issuance or
distribution requiring such computation;
  (b) for
purposes of adjustments pursuant to Section 15(a)(iv)(B) in the event of an
adjustment relating to a Spin-Off, the average of the Closing Prices over the
first ten consecutive Trading Days commencing on and including the fifth Trading
Day following the Ex-Date for such distribution; and
  (c) for
purposes of adjustments pursuant to Section 15(a)(vi), the average of the
Closing Prices over the five consecutive Trading Day period ending on the
seventh Trading Day after the Expiration Date of the tender offer or exchange
offer.
  "Depositary"means DTC or its
nominee or any successor appointed by the Corporation.
  "Dividend Payment Date"means
January 1, April 1, July 1, and October 1 of each year to and including the
Mandatory Conversion Date.
  "Dividend Period"means the
period from and including a Dividend Payment Date to but excluding the next
Dividend Payment Date, except
that the initial Dividend Period willcommence on and include the Issue Date
and will end on and exclude the April 1, 2008 DividendPayment Date.
  "Dividend Rate"shall have the
meaning set forth in Section 4. "DTC"means The Depository
Trust Corporation.
  "Early Conversion"shall have
the meaning set forth in Section 9(a).
  "Early Conversion Additional
Conversion Amount"shall have the meaning set forth in Section
9(c).
  "Early Conversion Date"shall
have the meaning set forth in Section 9(b).
  4
 "Effective Date"shall have
the meaning set forth in Section 10(a). "Exchange Property"shall have
the meaning set forth in Section 15(e).
  "Ex-Date"when used with respect
to any issuance or distribution, means the first date on which shares of the
Common Stock trade without the right to receive such issuance or
distribution.
  "Expiration Date"shall have
the meaning set forth in Section 15(a)(vi). "Expiration Time"shall have
the meaning set forth in Section 15(a)(vi).
  "Fair Market Value"means the
fair market value as determined in good faith by the Board of Directors, whose
determination shall be conclusive and set forth in a resolution of the Board of
Directors.
  "Fixed Conversion Rates"means
the Maximum Conversion Rate and the Minimum Conversion Rate.
  "Global Preferred Share"shall
have the meaning set forth in Section 18(a). "Global Shares Legend"shall
have the meaning set forth in Section 18(a).
  "Holder"means the person in
whose name the shares of the Mandatory Convertible Preferred Stock are
registered, which may be treated by the Corporation and the Transfer Agent as
the absolute owner of the shares of Mandatory Convertible Preferred Stock for
the purpose of making payment and settling conversions and for all other
purposes.
  "Initial Price"shall have the
meaning set forth in Section 8(b)(ii).
  "Issue Date"shall mean
December 18, 2007, the original date of issuance of the Mandatory Convertible
Preferred Stock.
  "Junior Stock"means the
Common Stock, our Series A Junior Participating Preferred Stock, $0.25 par value
per share, and each other class of capital stock or series of Preferred Stock
established after the Issue Date, the terms of which do not expressly provide
that such class or series ranks senior to or on a parity with the Mandatory
Convertible Preferred Stock as to dividend rights or rights upon the
Corporation's liquidation, winding-up or dissolution.
  "Liquidation Preference"means, as to the Mandatory Convertible Preferred Stock, $100.00 per
share.
  "Mandatory Conversion Additional
Conversion Amount"shall have the meaning set forth in Section
8(d).
  "Mandatory Conversion Date"means January 1, 2011.
  "Mandatory Conversion Rate"shall have the meaning set forth in Section 8(b).
  5
 "Mandatory Convertible Preferred
Stock"shall have the meaning set forth in Section 1.
  "Material Transaction"means
the purchase, acquisition, by lease, exchange, merger, consolidation, succession
or other acquisition, in one transaction or a series of related transactions by
the Corporation and/or any of its wholly-owned subsidiaries from the same
seller, of assets or a business, the aggregate purchase price of which is equal
to or exceeds $100,000,000.
  "Maximum Conversion Rate"shall have the meaning set forth in Section 8(b)(iii).
  "Maximum Provisional Conversion Rate"shall have the meaning set forth in the definition of "Provisional
Conversion Rate."
  "Minimum Conversion Rate"shall have the meaning set forth in Section 8(b)(i).
  "Minimum Provisional Conversion Rate"shall have the meaning set forth in the definition of "Provisional
Conversion Rate."
  "Officer"means the Chairman
of the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer, or the Secretary of
the Corporation.
  "Officer's Certificate"means
a certificate of the Corporation, signed by any duly authorized Officer of the
Corporation.
  "Parity Stock"means the
Series B Cumulative Convertible Preferred Stock, $0.25 par value per share, and
each other class of capital stock or series of Preferred Stock established after
the Issue Date, the terms of which expressly provide that such class or series
shall rank on a parity with the Mandatory Convertible Preferred Stock as to
dividend rights or rights upon the Corporation's liquidation, winding-up or
dissolution.
  "Person"means a legal person,
including any individual, corporation, estate, partnership, joint venture,
association, joint-stock company, limited liability company or
trust.
  "Preferred Stock"shall have
the meaning set forth in the recitals.
  "Provisional Conversion Date"means the date fixed by the Board of Directors for the Provisional
Conversion of the Mandatory Convertible Preferred Stock into shares of Common
Stock, which will be no less than 45 nor more than 60 calendar days from the
date of the written notice exercising such right.
  6
 "Provisional Conversion Rate"means the conversion rate set forth in the table below for the Applicable
Market Value:
  Applicable
      Market Value
                Provisional
                  Conversion
      Rate
                Conversion
      Value (Applicable
                  Market
      Value Multiplied by the
                  Provisional
      Conversion Rate)$2.00
                19.2474
      ("maximum provisional
                  conversion
      rate")
                $38.49
 $4.00
                13.7474
                $54.99$6.00
                11.9141
                $71.48$8.00
                10.9974
                $87.98$10.00
                10.4974
                $104.47$12.00
                10.0808
                $120.97$14.00
                9.8189
                $137.46$16.00
                9.6224
                $153.96$18.00
                9.4696
                $170.45$20.00
                9.3474
                $186.95$22.00
                9.2474
                $203.44$24.00
                9.1641
                $219.94$26.00
                9.0936
                $236.43$28.00
                9.0331
                $252.93$30.00
                8.9808
      ("minimum provisional conversion
                  rate")
                $269.42
  The exact
Applicable Market Value may not be set forth on the table, in which case the
following rules shall apply.
  If the
Applicable Market Value is between two Applicable Market Values on the table,
the Provisional Conversion Rate will be determined by straight-line
interpolation between the Provisional Conversion Rates set forth for the higher
and lower Applicable Market Values.
  If the
Applicable Market Value is in excess of $30.00 per share (subject to
adjustment), then the Provisional Conversion Rate will be the Minimum
Provisional Conversion Rate (subject to adjustment).
  If the
Applicable Market Value is less than $2.00 per share (subject to adjustment),
then the Provisional Conversion Rate will be the Maximum Provisional Conversion
Rate (subject to adjustment).
  The
Applicable Market Values set forth in the first column of the table will be
adjusted as of any date on which the Fixed Conversion Rates of the Mandatory
Convertible Preferred Stock are adjusted. The Adjusted Applicable Market Values
will equal the Applicable Market Values applicable immediately prior to such
adjustment multiplied by a fraction, the numerator of which is the Minimum
Conversion Rate immediately prior to the adjustment giving rise to the
Applicable Market Value adjustment and the denominator of which is the Minimum
Conversion Rate as so adjusted.
  "Provisional Conversion Right"shall have the meaning set forth in Section 11(a).
  "Record Date"means March 15,
June 15, September 15, and December 15, immediately preceding the April 1, July
1, October 1, and January 1, respectively, Dividend Payment Date. These Record
Dates shall apply regardless of whether a particular Record Date is a Business
Day.
  "Record Holder"means a Holder
of record of the Mandatory Convertible Preferred Stock as such Holder appears on
the stock register of the Corporation at 5:00 p.m., New York City time, on a
Record Date.
  "Reorganization Event"shall
have the meaning set forth in Section 15(e).
  7
 "Restated Certificate of
Incorporation"shall have the meaning set forth in the
recitals.
  "Senior Stock"means any class
of capital stock or series of Preferred Stock established after the Issue Date,
the terms of which expressly provide that such class or series shall rank senior
to the Mandatory Convertible Preferred Stock as to dividend rights or rights
upon the Corporation's liquidation, winding-up or dissolution.
  "Share Cap"shall have the
meaning set forth in Section 4A(e).
  "Shelf Registration Statement"shall mean a shelf registration statement filed with the Securities and
Exchange Commission in connection with the issuance of or resales of shares of
Common Stock issued as payment of a dividend, including dividends paid in
connection with a conversion, as described under Section 4A(f).
  "Spin-Off'means a dividend or other
distribution of shares to all or substantially all holders of Common Stock
consisting of capital stock of, or similar equity interests in, or relating to a
subsidiary or other business unit of the Corporation.
  "Stock Price"means the price
paid per share of Common Stock in a Cash Acquisition. If the consideration paid
consists only of cash, the Stock Price shall equal the amount of cash paid per
share. In all other circumstances, the Stock Price shall be the average of the
Closing Prices
per share of the Common Stock over the 10consecutive Trading Day
period ending on the Trading Day preceding the Effective Date.
  "Threshold Appreciation Price"shall have the meaning set forth in Section 8(b)(i). "Trading Day"means a day on
which the Common Stock:
  (a) 
is not suspended from trading on any U.S. national or regional securities
exchange or association or over-the-counter market at the close of business;
and
  (b) 
has traded at least once on the U.S. national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
  "Transfer Agent"shall
initially mean American Stock Transfer & Trust Company, New York, New York,
the Corporation's duly appointed transfer agent, registrar, and conversion and
dividend disbursing agent for the Mandatory Convertible Preferred
Stock.
  "Voting Rights Class"shall
have the meaning set forth in Section 6(a)(i).
  "Voting Rights Triggering Event"shall mean the failure of the Corporation to pay dividends on the
Mandatory Convertible Preferred Stock with respect to six or more Dividend
Periods (whether or not consecutive).
  (3)Ranking.The Mandatory Convertible Preferred Stock will, with respect to dividend
rights or rights upon the liquidation, winding-up or dissolution of the
Corporation rank
  8
 (i)
senior to all Junior Stock, (ii) on parity with all Parity Stock and (iii)
junior to all Senior Stock and the Corporation's existing and future
indebtedness.
  (4)Dividends.(a) Holders of shares of outstanding Mandatory Convertible Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, or an authorized committee of the Board of Directors, out of funds of
the Corporation legally available therefor, cumulative dividends at the rate per
annum of 6.5% per share on the Liquidation Preference (the "Dividend Rate")(equivalent to $6.50 per annum per share).
  Dividends
shall be payable in arrears on each Dividend Payment Date (commencing on April
1, 2008) for the Dividend Period ending immediately prior to such Dividend
Payment Date, to the Record Holders of Mandatory Convertible Preferred Stock on
the Record Date applicable to such Dividend Payment Date. If a Dividend Payment
Date is not a Business Day, payment will be made on the next succeeding Business
Day, without any interest or other payment in lieu of interest accruing with
respect to this delay. Such dividends shall be cumulative from the most recent
date as to which dividends shall have been paid or, if no dividends have been
paid, from the Issue Date, whether or not in any Dividend Period(s) there shall
have been funds of the Corporation legally available for the payment of such
dividends. Accumulated dividends on shares of Mandatory Convertible Preferred
Stock shall not bear interest if they are paid subsequent to the applicable
Dividend Payment Date.
  Dividends
payable for each full Dividend Period will be computed by dividing the Dividend
Rate by four. Dividends payable for any period other than a full Dividend Period
shall be computed on the basis of the actual number of days elapsed during the
period over a 360-day year (consisting of twelve 30-day months).
  (b) No dividend
shall be declared or paid upon, or any sum or number of shares of the Common
Stock set apart for the payment of dividends upon, any outstanding share of
Mandatory Convertible Preferred Stock with respect to any Dividend Period unless
all dividends for all preceding Dividend Periods shall have been declared and
paid upon, or a sufficient sum or number of shares of Common Stock shall have
been set apart for the payment of such dividend upon, all outstanding shares of
Mandatory Convertible Preferred Stock.
  (c) Holders of
shares of Mandatory Convertible Preferred Stock shall not be entitled to any
dividends on the Mandatory Convertible Preferred Stock, whether payable in cash,
property or stock, in excess of full cumulative dividends.
  (d) Dividends on
any share of Mandatory Convertible Preferred Stock converted to Common Stock
shall ceaseto accumulate
on the Mandatory Conversion Date, the Cash Acquisition Conversion Date, the
Early Conversion Date or Provisional Conversion Date (each, a "Conversion Date"),as applicable.
  (e) The
Corporation shall disclose in its annual and quarterly reports on Form 10-K and
Form 10-Q, respectively, filed with the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended, the amount of any accumulated
and unpaid dividends on Mandatory Convertible Preferred Stock for Dividend
Periods ending prior to the last date of the relevant quarterly or annual period
as to which such report relates.
  9
 (4A) Method of Payment of Dividends.(a) Subject to Section 4A(e), any declared dividend (or any portion of
any declared dividend) on the Mandatory Convertible Preferred Stock, whether or
not for a current Dividend Period or any prior Dividend Period (including in
connection with the payment of accumulated and declared and unpaid dividends to
the extent required to be paid pursuant to Section 8, Section 9, or Section 10),
may be paid by the Corporation, as determined in the Corporation's sole
discretion:
  (i) in
cash;
  (ii)          
by delivery of shares of Common Stock; or
  (iii)         
through any combination of cash and shares of Common Stock.
  (b) Each payment
of a declared dividend on the Mandatory Convertible Preferred Stock
shall be made in cash, except to the extent the Corporation elects to make all
or any portion of such payment in Common Stock by giving notice to Holders
thereof of such election and the portion of such payment that shall be made in
cash and the portion of such payment that shall be made in Common Stock no later
than 10 Trading Days prior to the Dividend Payment Date for such
dividend.
  (c) Common Stock
issued in payment or partial payment of a declared dividend shall be valued
for such purpose at 97% of the average of the Closing Prices per share of Common
Stock over the five consecutive Trading Day period ending on the second Trading
Day immediately preceding:
  (i) the
applicable Dividend Payment Date, in respect of a dividend payable on any such
date; or
  (ii) the Mandatory
Conversion Date, the Early Conversion Date, or the Cash Acquisition Conversion
Date, as applicable, in respect of a dividend payable on such
date.
  (d) No fractional
shares of Common Stock shall be delivered to Holders in payment or
partial payment of a dividend. A cash adjustment shall be paid to each Holder
that would otherwise be entitled to a fraction of a share of Common Stock based
on the average of the Closing Prices of the Common Stock over the five
consecutive Trading Day period ending on the second Trading Day immediately
preceding the Dividend Payment Date for such dividend.
  (e) Notwithstanding the
foregoing, in no event shall the number of shares of Common
Stock delivered in connection with any regular dividend payment or any dividend
payment made in connection with a conversion exceed a number equal to the total
dividend payment divided by $1395 (this number of shares, the "Share Cap"),subject to
adjustment in the same manner (but on an inversely proportional basis) as each
Fixed Conversion Rate as set forth in Section 15. To the extent the Corporation
does not deliver shares of Common Stock as a result of the Share Cap and the
Corporation is legally able to do so, the Corporation shall, notwithstanding any
notice by it to the contrary, pay the remaining declared and unpaid dividends in
cash.
  10
 (f) To the extent
that the Corporation, in its reasonable judgment, determines that a Shelf
Registration Statement is required in connection with the issuance of, or for
resales of, Common Stock issued as payment of a dividend, including dividends
paid in connection with a conversion, the Corporation shall, to the extent such
a Shelf Registration Statement is not currently filed and effective, use its
reasonable best efforts to file and maintain the effectiveness of such a Shelf
Registration Statement until the earlier of such time as all sales of Common
Stock have been resold thereunder and such time as all such shares are freely
tradeable without registration. To the extent applicable, the Corporation shall
also use its reasonable best efforts to have the
shares of Common Stock qualified or registered under applicable state securities
laws, if required, and approved for listing on the New York Stock Exchange (or
if the Common Stock is not listed on the New York Stock Exchange, on the
principal other U.S. national or regional securities exchange on which the
Common Stock is then listed).
  (5)Payment
Restrictions.(a)Unless all accumulated and unpaid dividends on
 Mandatory
Convertible Preferred Stock for all prior Dividend Periods shall have been paid
in full, the Corporation shall not:
  (i) declare
      or pay any dividend or make any distribution of assets on any Junior
      Stock, other than dividends or distributions in the form of Junior Stock
      and cash solely in lieu of fractional shares in connection with any such
      dividend or distribution;
  (ii) redeem,
      purchase or otherwise acquire any shares of Junior Stock or pay or make
      any monies available for a sinking fund for such shares of Junior Stock,
      other than (A) upon conversion or exchange for other Junior Stock, (B) the
      purchase of fractional interests in shares of any Junior Stock pursuant to
      the conversion or exchange provisions of such Junior Stock, or (C) the
      forfeiture of unvested shares of restricted stock or share withholdings
      upon exercise, delivery or vesting of equity awards granted to officers,
      directors and employees upon termination of employment or service with the
      Corporation or any of its
subsidiaries;
  (iii) except
      as provided in Section 5(b), declare or pay any dividend or make any
      distribution of assets on any shares of Parity Stock, other than (A)
      dividends or distributions in the
      form of Parity Stock or JuniorStock, (B) cash solely in lieu of
      fractional shares in connection with any such dividend or distribution,
      and (C) regular quarterly dividends on the Series B Cumulative Convertible
      Preferred Stock declared prior to the Issue Date and payable January 1,
      2008; or
  (iv) redeem,
      purchase or otherwise acquire any shares of Parity Stock, except upon
      conversion into or exchange for other Parity Stock or Junior Stock and
      cash solely in lieu of fractional shares in connection with any such
      conversion or exchange.
  (b)           
When dividends are not paid in full upon the shares of Mandatory Convertible Preferred
Stock, all dividends declared on Mandatory Convertible Preferred Stock and any
other Parity Stock shall be paid either:
  11
 (i) pro
      rata so that the amount of dividends so declared on the shares of
      Mandatory Convertible Preferred Stock and each such other class or series
      of Parity Stock shall in all cases bear to each other the same ratio as
      accumulated dividends on the shares of Mandatory Convertible Preferred
      Stock and such class or series of Parity Stock bear to each other;
      or
  (ii) on
      another basis that is at least as favorable to the Holders of Mandatory
      Convertible Preferred Stock entitled to receive such
      dividends.
  (6)Voting
Rights.(a) The Holders of Mandatory Convertible Preferred Stock shall have no
voting rights except as set forth below or as otherwise required by Delaware law
from time to time:
  (i) If and
      whenever at any time or times a Voting Rights Triggering Event occurs,
      then the Holders of shares of Mandatory Convertible Preferred Stock,
      voting separately as a single class with any Parity Stock having similar
      voting rights that are exercisable (the "Voting
      Rights Class"),shall be entitled at the Corporation's next regular
      or special meeting of shareholders of the Corporation to elect two
      additional directors to the Board of Directors. Upon the election of any
      such additional directors, the number of directors that comprise the Board
      of Directors shall be increased by such number of additional
      directors.
  (ii) Such
      voting rights may be exercised at a special meeting of the holders of the
      shares of the Voting Rights Class, called as hereinafter provided, or at
      any annual meeting of shareholders held for the purpose of electing
      directors, and thereafter at each such annual meeting at which any of such
      two directorships shall be vacant or expiring until such time as all
      dividends in arrears on the shares of Mandatory Convertible Preferred
      Stock shall have been paid in full, at which time or times such voting
      rights and the term of the directors elected pursuant to Section 6(a)(i)
      shall terminate. So long as the Corporation's Certificate of Incorporation
      provides for a classified board, such additional directors shall be
      elected for terms of one, two or three years so as to cause the number of
      directors in each class to be as nearly equal in number as
      possible.
  (iii) At any
      time when voting rights pursuant to Section 6(a)(i) shall have vested and
      be continuing in Holders of Mandatory Convertible Preferred Stock, or if a
      vacancy shall exist in the office of any such additional director, the
      Board of Directors may call, and, upon written request of the Holders of
      record of at least 25% of the outstanding shares of Mandatory Convertible
      Preferred Stock addressed to the chairman of the Board of Directors shall
      call, a special meeting of the holders of shares of the Voting Rights
      Class (voting separately as a single class with any Parity Stock having
      similar rights that are exercisable) for the purpose of electing the
      directors that such holders are entitled to elect. Such meeting shall be
      held at the earliest practicable date upon the notice required for annual
      meetings of shareholders at the place for holding annual meetings of
      shareholders of the Corporation, or, if none, at a place designated by the
      Board of Directors. Notwithstanding the provisions of this Section
      6(a)(iii), no such special meeting shall be called during a period within
      the 60 days immediately preceding the date fixed for the next annual
      meeting of shareholders in which such case, the election of directors
      pursuant to Section 6(a)(i) shall be held at such annual meeting of
      shareholders.
 
 12
 (iv) At any
      meeting at which the holders of the Voting Rights Class shall have the
      right to elect directors as provided herein, the presence in person or by
      proxy of the holders of shares representing more than 50% in voting power
      of the then outstanding shares of the Voting Rights Class shall be
      required and shall be sufficient to constitute a quorum of such class for
      the election of directors by such class. The affirmative vote of the
      holders of the Voting Rights Class constituting a majority of the Voting
      Rights Class present
      atsuch meeting, in person or by proxy, shall be sufficient to
      elect any such director.
  (v) Any
      director elected pursuant to the voting rights created under this Section
      6(a) shall hold office until the next annual meeting of shareholders at
      which such director's class is being elected (unless such term has
      previously terminated pursuant to Section 6(a)(ii)) and any vacancy in
      respect of any such director shall be filled only by vote of the remaining
      director so elected by holders of the Voting Rights Class, or if there be
      no such remaining director, by the holders of shares of the Voting Rights
      Class at a special meeting called in accordance with the procedures set
      forth in this Section 6(a), or, if no such special meeting is called, at
      the next annual meeting of
shareholders.
  (vi) So long
      as any shares of Mandatory Convertible Preferred Stock remain outstanding,
      unless a greater percentage shall then be required by law, the Corporation
      shall not, without the affirmative vote or consent of the holders of at
      least 66 2/3% of the outstanding shares of Mandatory Convertible Preferred
      Stock and all other shares of the Voting Rights Class, voting separately
      as a single class, in person or by proxy, at an annual meeting of the
      Corporation's shareholders or at a special meeting called for such
      purpose, or by written consent in lieu of such meeting, alter, repeal or
      amend, whether by merger, consolidation, combination, reclassification or
      otherwise, any provisions of the Restated Certificate of Incorporation or
      this Certificate if the amendment would amend, alter or affect the powers,
      preferences or rights of Mandatory Convertible Preferred Stock so as to
      adversely affect the Holders thereof, including, without limitation, the
      creation of, increase in the authorized number of, or issuance of, shares
      of any class or series of Senior
Stock.
  (vii)          
      In exercising the voting rights set forth in this Section 6(a), each share
      of Mandatory Convertible Preferred Stock and any other shares of the
      Voting Rights Class participating in the votes described above shall be in
      proportion to the liquidation preference of such
  share.
  (b) The
Corporation may authorize, increase the authorized amount of, or issue any shares of
any class or series of Parity Stock or Junior Stock, without the consent of the
Holders of
Mandatory Convertible Preferred Stock, and in taking such actions the
Corporation shall not be deemed
to have affected adversely the powers, preferences or rights of Holders of
shares of Mandatory Convertible Preferred Stock.
  13
 (7)Liquidation,
Dissolution or Winding-Up.(a) In
the event of any liquidation, winding-up
or dissolution of the Corporation, whether voluntary or involuntary, each Holder
of Mandatory Convertible Preferred Stock shall be entitled to receive the
Liquidation Preference plus an amount equal to accumulated and unpaid dividends
on the shares to the date fixed for liquidation, winding-up or dissolution to be
paid out of the assets of the Corporation available for distribution to its
shareholders, after satisfaction of liabilities owed to the Corporation's
creditors and distributions to holders of Senior Stock, and before any payment
or distribution is made on any Junior Stock, including, without limitation,
Common Stock.
  (b) Neither the
sale, conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all the assets or business of the
Corporation (other than in connection with the liquidation, winding-up or
dissolution of its business) nor the merger or consolidation of the Corporation
into or with any other Person shall be deemed to be a liquidation, winding-up or
dissolution, voluntary or involuntary, for the purposes of this Section
7.
  (c) After the
payment to the Holders of the shares of Mandatory Convertible Preferred Stock of
full preferential amounts provided for in this Section 7, the Holders of
Mandatory Convertible Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
  (d) If upon the
voluntary or involuntary liquidation, winding-up or dissolution of the
Corporation, the amounts payable with respect to the Liquidation Preference plus
an amount equal to accumulated and unpaid dividends of the Mandatory Convertible
Preferred Stock and all Parity Stock are not paid in full, the holders of the
Mandatory Convertible Preferred stock and the Parity Stock will share equally
and ratably in any distribution of the Corporation's assets in proportion to the
respective liquidation preference and an amount equal to the accumulated and
unpaid dividends to which such holders are entitled.
  (8)Mandatory
Conversion on the Mandatory Conversion Date.(a) Each share of Mandatory
Convertible Preferred Stock shall automatically convert (unless previously
converted at the option of the Holder in accordance with Section 9, pursuant to
an exercise of a Cash Acquisition Conversion right pursuant to Section 10 or
pursuant to an exercise of the Provisional Conversion Right pursuant to Section
11) on the Mandatory Conversion Date, into a number of shares of Common Stock
equal to the Mandatory Conversion Rate.
  (b) The "Mandatory Conversion Rate"shall be as follows:
  (i) if the
Applicable Market Value of the Common Stock is greater than $11.83 (the "Threshold Appreciation Price"),then the Mandatory Conversion Rate shall be equal to 8.4502 shares of
Common Stock per share of Mandatory Convertible Preferred Stock (the "MinimumConversion
Rate");
  (ii) if the
Applicable Market Value of the Common Stock is less than or equal to the
Threshold Appreciation Price but greater than or equal to $9.70 (the "Initial Price"), then the Mandatory
Conversion Rate shall be equal to $100 divided by the Applicable Market Value of
the Common Stock; or
  14
 (iii) if the
Applicable Market Value of the Common Stock is less than the Initial Price, then the
Mandatory Conversion Rate shall be equal to 10.3093 shares of Common Stock per
share of Mandatory Convertible Preferred Stock (the "MaximumConversion
Rate").
  (c) The Fixed
Conversion Rates, the Threshold Appreciation Price, the Initial Price and the
Applicable Market Value are each subject to adjustment in accordance with the
provisions of Section 15.
  (d) In addition
to the number of shares of Common Stock issuable pursuant to this Section 8 at
the Mandatory Conversion Rate, the Holders of Mandatory Convertible Preferred
Stock on the Mandatory Conversion Date shall have the right to receive an amount
equal to all accumulated and declared and unpaid dividends on the Mandatory
Convertible Preferred Stock, for the then-current Dividend Period ending on the
Mandatory Conversion Date and all prior Dividend Periods (other than previously
declared dividends on the Mandatory Convertible Preferred Stock payable to
Holders of record as of a prior date).
  In
addition, if on the Mandatory Conversion Date the Corporation has not declared
all or any portion of the accumulated and unpaid dividends payable on such date,
the Mandatory Conversion Rate will be adjusted so that Holders receive an
additional number of shares of Common Stock equal to the amount of accumulated
and unpaid dividends that have not been declared ("Mandatory Conversion Additional
Conversion Amount")divided by the average of the Closing Prices of the
Common Stock over the 20 consecutive Trading Day period ending on the third
Trading Day immediately preceding the Mandatory Conversion Date; provided, however,that in no event shall the Corporation increase the number of shares of
Common Stock to be issued in excess of the Share Cap. To the extent that the
Corporation does not deliver any or all of the additional shares as a result of
the Share Cap, the Corporation shall not pay the remaining Mandatory Conversion
Additional Conversion Amount in cash.
  (9)Early Conversion
at the Option of the Holder.(a) Other than during a Cash Acquisition
Conversion Period, the Holders of Mandatory Convertible Preferred Stock shall
have the right to convert their shares of Mandatory Convertible Preferred Stock,
in whole or in part, at any time prior to the Mandatory Conversion Date ("Early Conversion"),into
shares of Common Stock at the Minimum Conversion Rate.
  (b) In addition
to the number of shares of Common Stock issuable pursuant to Section
9(a), with respect to each share of Mandatory Convertible Preferred Stock being
converted, the converting Holder shall have the right to receive on the
effective date of the Early Conversion (the "Early Conversion Date")all
accumulated and declared and unpaid dividends for all prior Dividend Periods
ending on or prior to the Dividend Payment Date immediately preceding the Early
Conversion Date (other than previously declared dividends on the Mandatory
Convertible Preferred Stock payable to Holders of record as of a prior
date).
 
 15
 (c) In addition,
if on the Early Conversion Date the Corporation has not declared all or any
portion of the accumulated and unpaid dividends payable for such prior dividend
periods, the Minimum Conversion Rate will be adjusted so that the converting
Holder receives an additional number of shares of Common Stock equal to such
amount of accumulated and unpaid dividends that have not been declared (the
"Early Conversion Additional
ConversionAmount"),divided by the average of the Closing Prices of the Common Stock over the
20 consecutive Trading Day period ending on the third Trading Day immediately
preceding the Early Conversion Date; provided, however ,that in
no event shall the Corporation increase the number of shares of Common Stock to
be issued in excess of the Share Cap. To the extent that the Corporation does
not deliver any or all additional shares as a result of the Share Cap, the
Corporation will not pay the remaining Early Conversion Additional Conversion
Amount in cash. Except as described above, upon any Early Conversion of the
Mandatory Convertible Preferred Stock, the Corporation shall make no payment or
allowance for unpaid dividends on the Mandatory Convertible Preferred
Stock.
  (10)Cash Acquisition
Conversion.(a) If a Cash Acquisition occurs prior to the Mandatory
Conversion Date, the Holders of the Mandatory Convertible Preferred Stock shall
have the right to convert their shares of Mandatory Convertible Preferred Stock,
in whole or in part (such right of the Holders to convert their shares pursuant
to this Section 10(a) being the "Cash Acquisition Conversion")during a period (the "Cash Acquisition Conversion Period")that begins on the effective date of such Cash Acquisition (the
"Effective Date") and ends at 5:00 p.m., New York City time, on the date that is
15 calendar days after the Effective Date (or, if earlier, the Mandatory
Conversion Date) into shares of Common Stock at the Cash Acquisition Conversion
Rate (as adjusted pursuant to Section 15).
  (b)  On or before
the twentieth calendar day prior to the anticipated Effective Date of the Cash
Acquisition, a written notice (the "Cash Acquisition Notice")shall be sent by or on behalf of the Corporation, by first-class mail,
postage prepaid, to the Holders of record as they appear on the stock register
of the Corporation. Such notice shall state:
  (i)
      the anticipated effective date of the Cash
  Acquisition;
  (ii)that Holders shall
      have to right to effect a Cash Acquisition Conversion inconnection with such Cash
      Acquisition during the Cash Acquisition ConversionPeriod;
  (iii)the Cash Acquisition Conversion
Period;
  (iv)
      if the Corporation shall elect to pay any amount payable pursuant to
      Section 10(c) below in shares of Common Stock or a combination cash and
      shares of Common Stock, that the Corporation shall pay such amount payable
      in full in shares or in a combination of cash and shares of Common Stock
      (and if so, will specify the combination, which may be in percentage
      terms); and
  (v)
      the instructions a Holder must follow to effect a Cash Acquisition
      Conversion in connection with such Cash
  Acquisition.
 
 16
 (c) Upon any
conversion pursuant to Section 10(a), in addition to issuing to the converting
Holders the number of shares of Common Stock at the Cash Acquisition Conversion
Rate, the Corporation shall:
  (i)            
(x)  pay the converting
Holders in cash (or in the Corporation's sole discretion (subject
to the Share Cap) in shares of Common Stock or a combination of cash and shares
of Common Stock) to the extent the Corporation is legally permitted to do so,
the sum of:
  (A) an amount
equal to any accumulated and declared and unpaid dividends on shares of
Mandatory Convertible Preferred Stock subject to such Cash Acquisition
Conversion (other than previously declared dividends on the Mandatory
Convertible Preferred Stock payable to Record Holders as of a prior date),
and
  (B) the present
value of all dividend payments on shares of Mandatory Convertible Preferred
Stock subject to such Cash Acquisition Conversion for all remaining Dividend
Periods from the Effective Date to but excluding the Mandatory Conversion Date
(the "Cash Acquisition Dividend
Make-Whole Amount")(the present value of the remaining future dividend
payments shall be computed using a discount rate equal to 8.50%),
or
  (y) increase the
number of shares of Common Stock to be issued on conversion
by a number equal to (A) the sum of any accumulated and declared and unpaid
dividends and the Cash Acquisition Dividend Make-Whole Amount divided by (B)the Stock Price;
and
  (ii) if the
Corporation has not declared all or any portion of the accumulated and unpaid
dividends payable on the Effective Date, the Cash Acquisition Conversion Rate
will be adjusted so that converting Holders receive an additional number of
shares of Common Stock equal to the amount of accumulated and unpaid dividends
that have not been declared (the "CashAcquisition Conversion Additional
Conversion Amount"),divided by the Stock Price; provided, however ,that in
no event shall the Corporation increase the number of shares of Common Stock to
be issued in excess of the Share Cap. To the extent that the Corporation does
not deliver any or all additional shares as a result of the Share Cap, the
Corporation shall not pay the remaining Cash Acquisition Conversion Additional
Conversion Amount in cash.
  (11)  Provisional
Conversion on the Provisional Conversion Date. (a) The Corporation may, at any
time on or prior to July 1, 2008, at its option, cause the conversion of all,
but not less than all, the outstanding shares of the Mandatory Convertible
Preferred Stock into a number of shares of Common Stock equal to the Provisional
Conversion Rate (subject to adjustment) (the "Provisional Conversion Right");provided, however,that the Corporation may not elect to exercise its Provisional Conversion
Right if, on or prior to July 1,2008, the Corporation has
completed a Material Transaction.
  (b) Each share of
Mandatory Convertible Preferred Stock shall automatically convert (unless
previously converted at the option of the Holder in accordance with Section 9 or
pursuant to an exercise of a Cash Acquisition Conversion right pursuant to
Section 10)on the
Provisional Conversion
Date, into a number of shares of Common Stock equal to the Provisional
Conversion Rate.
  17
 (c) The
Corporation may elect to exercise the Provisional Conversion Right only if, in
addition to issuing the number of shares of Common Stock equal to the
Provisional Conversion Rate, the Corporation is then legally permitted to, and
does, pay Holders an amount in cash equal to all accumulated and unpaid
dividends (whether or not declared) on the Mandatory Convertible Preferred Stock
for the then-current Dividend Period ending on the Provisional Conversion Date
and all prior Dividend Periods (other than previously declared dividends on the
Mandatory Convertible Preferred Stock payable to Holders of record as of a prior
date). If the Corporation has not declared, or is unable to declare, all or any
portion of such dividends, the Corporation shall not exercise the Provisional
Conversion Right.
  (d) The
Corporation may elect to deliver, in lieu of shares of Common Stock upon
conversion, cash or any combination of cash and shares of Common Stock, as
determined by the Corporation in its sole discretion. The Corporation will
deliver an amount of cash (if any) equal to (i) (x) the Provisional Conversion
Rate minus (y) the number of shares of Common Stock the Corporation delivers (if
any), multiplied by (ii) the Applicable Market Value.
  (e) If the
Corporation elects to exercise the Provisional Conversion Right, it will send a
written notice by first class mail to each Holder specifying, among other
things, the Provisional Conversion Date, that all accrued and unpaid dividends
inrespect of the current
and any prior Dividend Period for which such dividend has not been paid in full
will be paid in full in cash, whether such conversion amount will be payable in
full in shares of Common Stock or any combination of cash and shares of Common
Stock and, if a combination, specifying the portions payable in cash and Common
Stock (which may be in percentage terms). In addition, the Corporation will
issue a press release containing such information and publish such information
on its website; provided, however,that the failure to issue such press release or publish such information
on the Corporation's website will not prevent or delay such
conversion.
  (12)Conversion Procedures.
(a) Upon a Mandatory Conversion pursuant to Section 8 on the Mandatory
Conversion Date or upon a Provisional Conversion pursuant to Section 11 on the
Provisional Conversion Date, any outstanding shares of Mandatory Convertible
Preferred Stock will automatically convert into shares of Common Stock. The
person or persons entitled to receive the shares of Common Stock issuable upon
conversion of the Mandatory Convertible Preferred Stock will be treated as the
record holder(s) of such shares of Common Stock as of 5:00 p.m., New York City
time, on the Mandatory Conversion Date or Provisional Conversion Date, as
applicable. Except as provided under Section 15(c)(ii), prior to 5:00 p.m., New
York City time, on the Mandatory Conversion Date or Provisional Conversion Date,
as applicable, the shares of Common Stock issuable upon conversion of the
Mandatory Convertible Preferred Stock will not be deemed to be outstanding for
any purpose and Holders shall have no rights with respect to such shares of
Common Stock, including voting rights, rights to respond to tender offers and
rights to receive any dividends or other distributions on the Common Stock, by
virtue of holding the Mandatory Convertible Preferred Stock.
  (b)To
effect an Early Conversion pursuant to Section 9, a Holder who:
  18
 (i) holds a
beneficial interest in a global share of Mandatory Convertible Preferred stock
must deliver to DTC the appropriate instruction form for conversion pursuant to
DTC's conversion program and, if required, pay funds equal to the dividend
payable on the next Dividend Payment Date to which such Holder is not entitled
and, if required, pay all taxes or duties, if any; or
  (ii) holds shares
of Mandatory Convertible Preferred Stock in certificated form must:
  (A) complete and
manually sign the conversion notice on the back of the Mandatory Convertible
Preferred Stock certificate or a facsimile of the conversion
notice;
  (B) deliver the
completed conversion notice and the certificated shares of Mandatory Convertible
Preferred Stock to be converted to the Conversion Agent;
  (C) if required,
furnish appropriate endorsements and transfer documents;
  (D) if required,
pay funds equal to the dividend payable on the next Dividend Payment Date to
which such Holder is not entitled; and
  (E) if required,
pay all transfer or similar taxes, if any.
  The Early
Conversion Date will be the date on which a Holder has satisfied all of the
foregoing requirements, to the extent applicable. Holders will not be required
to pay any taxes or duties relating to the issuance or delivery of Common Stock
if Holders exercise their conversion rights, but they will be required to pay
any tax or duty that may be payable relating to any transfer involved in the
issuance or delivery of Common Stock in a name other than the name of such
Holder. Certificates representing Common Stock will be issued and delivered only
after all applicable taxes and duties, if any, payable by Holders have been paid
in full.
  The
person or persons entitled to receive the Common Stock issuable upon Early
Conversion shall be treated for all purposes as the record holder(s) of such
shares of Common Stock as of 5:00 p.m., New York City time, on the applicable
Early Conversion Date. No allowance or adjustment, except as set forth in
Section 15, shall be made in respect of dividends payable to holders of Common
Stock of record as of any date prior to such applicable Conversion Date. Prior
to the applicable Early Conversion Date, shares of Common Stock issuable upon
conversion of any shares of Mandatory Convertible Preferred Stock shall not be
deemed outstanding for any purpose, and Holders of shares of Mandatory
Convertible Preferred Stock shall have no rights with respect to the Common
Stock (including voting rights, rights to respond to tender offers for the
Common Stock and rights to receive any dividends or other distributions on the
Common Stock) by virtue of holding shares of Mandatory Convertible Preferred
Stock.
  In the
event that an Early Conversion is effected with respect to shares of Mandatory
Convertible Preferred Stock representing less than all the shares of Mandatory
Convertible Preferred Stock held by a Holder, upon such Early Conversion the
Corporation shall execute and the Transfer Agent shall countersign and deliver
to the Holder thereof, at the expense of the Corporation, a certificate
evidencing the shares of Mandatory Convertible Preferred Stock as to which Early
Conversion was not effected.
  19
 (c) To effect a
Cash Acquisition Conversion pursuant to Section 10, a Holder shall deliver to
the Conversion Agent, no earlier than the Effective Date of the Cash
Acquisition, and no later than 5:00 p.m., New York City time, on the date that
is 15 calendar days after the Effective Date (as specified in the Cash
Acquisition Notice), the certificate(s) (if such shares are held in certificated
form) evidencing the shares of Mandatory Convertible Preferred Stock with
respect to which the Cash Acquisition Conversion right is being exercised, duly
assigned or endorsed for transfer to the Corporation, or accompanied by duly
executed stock powers relating thereto, or in blank, with a written notice to
the Corporation stating the Holder's intention to convert early in connection
with the Cash Acquisition containing the information set forth in Section 12(b)
and providing the Corporation with payment instructions. For the avoidance of
doubt, Holders of Mandatory Convertible Preferred Stock who do not submit their
conversion notice during the Cash Acquisition Conversion Period shall not be
entitled to convert their shares of Mandatory Convertible Preferred Stock at the
Cash Acquisition Conversion Rate or to receive the Cash Acquisition Dividend
Make-Whole Amount.
  The
person or persons entitled to receive the Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder(s) of such
shares of Common Stock as of 5:00 p.m., New York City time, on the applicable
Cash Acquisition Conversion Date. No allowance or adjustment, except as set
forth in Section 15, shall be made in respect of dividends payable to holders of
Common Stock of record as of any date prior to such applicable Conversion Date.
Prior to such applicable Cash Acquisition Conversion Date, shares of Common
Stock issuable upon conversion of any shares of Mandatory Convertible Preferred
Stock shall
  not be
deemed outstanding for any purpose, and Holders of shares of Mandatory
Convertible Preferred Stock shall have no rights with respect to the Common
Stock (including voting rights, rights to respond to tender offers for the
Common Stock and rights to receive any dividends or other distributions on the
Common Stock) by virtue of holding shares of Mandatory Convertible Preferred
Stock.
  In the
event that a Cash Acquisition Conversion is effected with respect to shares of
Mandatory Convertible Preferred Stock representing less than all the shares of
Mandatory Convertible Preferred Stock held by a Holder, upon such Cash
Acquisition Conversion the Corporation shall execute and the Transfer Agent
shall countersign and deliver to the Holder thereof, at the expense of the
Corporation, a certificate evidencing the shares of Mandatory Convertible
Preferred Stock as to which Cash Acquisition Conversion was not
effected.
  (d) Shares of
Mandatory Convertible Preferred Stock shall cease to be outstanding on the
applicable Conversion Date, subject to the right of Holders of such shares to
receive shares of Common Stock issuable upon conversion of such shares of
Mandatory Convertible Preferred Stock and other amounts and shares of Common
Stock, if any, to which they are entitled pursuant to Section 8, Section 9,
Section 10 or Section 11, as applicable.
  (e) In the event
that a Holder of shares of Mandatory Convertible Preferred Stock shall not
by written notice designate the name in which shares of Common Stock to be
issued upon conversion of such Mandatory Convertible Preferred Stock should be
registered or the address to which the certificate or certificates representing
such shares of Common Stock should be sent, the Corporation shall be entitled to
register such shares, and make such payment, in the name of the Holder of such
Mandatory Convertible Preferred Stock as shown on the records of the
Corporation and to send the certificate or certificates representing such shares
of Common Stock to the address of such Holder shown on the records of the
Corporation.
  20
 (13) Reservation of
Common Stock.(a) The Corporation shall at all times reserve and keep
available out of its authorized and unissued Common Stock or shares held in the
treasury of the Corporation, solely for issuance upon the conversion of shares
of Mandatory Convertible Preferred Stock as herein provided, free from any
preemptive or other similar rights, such number of shares of Common Stock as
shall from time to time be issuable upon the conversion of all the shares of
Mandatory Convertible Preferred Stock then outstanding. For purposes of this
Section 13(a), the number of shares of Common Stock that shall be deliverable
upon the conversion of all outstanding shares of Mandatory Convertible Preferred
Stock shall be computed as if at the time of computation all such outstanding
shares were held by a single Holder.
  (b) Notwithstanding the
foregoing, the Corporation shall be entitled to deliver upon conversion of
shares of Mandatory Convertible Preferred Stock, as herein provided, shares of
Common Stock reacquired and held in the treasury of the Corporation (in lieu of
the issuance of authorized and unissued shares of Common Stock), so long as any
such treasury shares are free and clear of all liens, charges, security
interests or encumbrances (other than liens, charges, security interests and
other encumbrances created by the Holders).
  (c) All shares of
Common Stock delivered upon conversion of the Mandatory 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).
  (d) Prior to the
delivery of any securities that the Corporation shall be obligated to deliver
upon conversion of the Mandatory Convertible Preferred Stock, the Corporation
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.
  (e) The
Corporation hereby covenants and agrees that, if at any time the
Common
  Stock
shall be listed on the New York Stock Exchange or any other U.S. national
securities exchange or automated quotation system, the Corporation shall, 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 Common Stock issuable upon conversion of the
Mandatory Convertible Preferred Stock; provided, however ,that if the rules of such exchange or automated quotation system permit
the Corporation to defer the listing of such Common Stock until the first
conversion of Mandatory Convertible Preferred Stock into Common Stock in
accordance with the provisions hereof, the Corporation covenants to list such
Common Stock issuable upon conversion of the Mandatory Convertible Preferred
Stock in accordance with the requirements of such exchange or automated
quotation system at such time.
  (14)Fractional
Shares.(a) No fractional shares of Common Stock shall be issued as a
result of any conversion of shares of Mandatory Convertible Preferred
Stock.
  21
 (b) In lieu of
any fractional share of Common Stock otherwise issuable in respect of any
mandatory conversion pursuant to Section 8 or a provisional conversion pursuant
to Section 11 or a conversion at the option of the Holder pursuant to Section 9
or Section 10, the Corporation shall pay an amount in cash (computed to the
nearest cent) equal to the same fraction of:
  (i) in the case
of a conversion pursuant to Section 8, a Cash Acquisition Conversion pursuant to
Section 10 or a Provisional Conversion pursuant to Section 11, the average of
the Closing Prices over the five consecutive Trading Day period preceding the
Trading Day immediately preceding the Mandatory Conversion Date, Cash
Acquisition Conversion Date or Provisional Conversion Date, as applicable;
or
  (ii) in the case
of an Early Conversion pursuant to Section 9, the Closing Price of the Common
Stock on the second Trading Day immediately preceding the Early Conversion
Date.
  (c) If more than
one share of the Mandatory Convertible Preferred Stock is surrendered
for conversion at one time by or for the same Holder, the number of full shares
of Common Stock issuable upon conversion thereof shall be computed on the basis
of the aggregate number of shares of the Mandatory Convertible Preferred Stock
so surrendered.
  (15) Anti-Dilution
Adjustments to the Fixed Conversion Rates.(a) Each Fixed Conversion Rate
shall be subject to the following adjustments:
  (i)Stock Dividends and
Distributions.If the Corporation issues Common Stock to all or
substantially all of the holders of Common Stock as a dividend or other
distribution, each Fixed Conversion Rate in effect at 5:00 p.m., New York City
time, on the date fixed for determination of the holders of Common Stock
entitled to receive such dividend or other distribution will be divided by a
fraction:
  (A) the numerator
of which is the number of shares of Common Stock outstanding at 5:00 p.m., New
York City time, on the date fixed for such determination, and
  (B) the
denominator of which is the sum of the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such
determination and the total number of shares of Common Stock constituting such
dividend or other distribution.
  Any
adjustment made pursuant to this clause (i) will become effective immediately
after 5:00 p.m., New York City time, on the date fixed for such determination.
If any dividend or distribution described in this clause (i) is declared but not
so paid or made, each Fixed Conversion Rate shall be readjusted, effective as of
the date the Board of Directors publicly announces its decision not to make such
dividend or distribution, to such Fixed Conversion Rate that would be in effect
if such dividend or distribution had not been declared. For the purposes of this
clause (i), the number of shares of Common Stock outstanding at 5:00 p.m., New
York City time, on the date fixed for such determination shall not include
shares held in treasury by the Corporation but shall include any shares issuable
in respect of any scrip certificates issued in lieu of fractions of shares of
Common Stock. The Corporation shall not pay any dividend or make any
distribution on shares of Common Stock held in treasury by the
Corporation.
  22
 (ii)Issuance of Stock Purchase Rights.If the Corporation issues to all or substantially
all holders of Common Stock rights or warrants (other than rights or warrants
issued pursuant to a dividend reinvestment plan or share purchase plan or other
similar plans), entitling such holders, for a period of up to 45 calendar days
from the date of issuance of such rights or warrants, to subscribe for or
purchase shares of Common Stock at a price per share less than the
Current Market Price, each Fixed Conversion Rate in effect at 5:00 p.m., New
York City time, on the date fixed for determination of the holders of Common
Stock entitled to receive such
rights or warrants will be increased by multiplying such Fixed Conversion Rate
by a fraction:
  (A) the numerator
of which is the sum of the number of shares of Common Stock outstanding at 5:00
p.m., New York City time, on the date fixed for such determination and the
number of shares of Common Stock issuable pursuant to such rights or warrants,
and
  (B) the
denominator of which is the sum of the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such
determination and the number of shares of Common Stock equal to the quotient of
the aggregate offering price payable to exercise such rights or warrants divided
by the Current Market Price.
  Any
adjustment made pursuant to this clause (ii) will become effective immediately
after 5:00 p.m., New York City time, on the date fixed for such determination.
In the event that such rights or warrants described in this clause (ii) are not
so issued, each Fixed Conversion Rate shall be readjusted, effective as of the
date the Board of Directors publicly announces its decision not to issue such
rights or warrants, to such Fixed Conversion Rate that would then be in effect
if such issuance had not been declared. To the extent that such rights or
warrants are not exercised prior to their expiration or shares of Common Stock
are otherwise not delivered pursuant to such rights or warrants upon the
exercise of such rights or warrants, each Fixed Conversion Rate shall be
readjusted to such Fixed Conversion Rate that would then be in effect had the
adjustment made upon the issuance of such rights or warrants been made on the
basis of the delivery of only the number of shares of Common Stock actually
delivered. In determining the aggregate offering price payable for such shares
of Common Stock, there shall be taken into account any consideration received
for such rights or warrants and the value of such consideration (if other than
cash, to be determined by the Board of Directors). For the purposes of this
clause (ii), the number of shares of Common Stock at the time outstanding shall
not include shares held in treasury by the Corporation but shall include any
shares issuable in respect of any scrip certificates issued in lieu of fractions
of shares of Common Stock. The Corporation shall not issue any such rights or
warrants in respect of shares of Common Stock held in treasury by the
Corporation.
  (iii) Subdivisions and Combinations of the
Common Stock.If outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock or combined into a lesser number
of shares of Common Stock, each Fixed Conversion Rate in effect at
5:00 p.m., New York City time, on the effective date of such subdivision or
combination shall be multiplied by a fraction:
  23
 (A) the numerator
of which is the number of shares of Common Stock that would be outstanding
immediately after, and solely as a result of, such subdivision or combination,
and
  (B) the
denominator of which is the number of shares of Common Stock outstanding
immediately prior to such subdivision or combination.
  Any
adjustment made pursuant to this clause (iii) shall become effective immediately
after 5:00 p.m., New York City time, on the effective date of such subdivision
or combination.
  (iv)Debt
or Asset Distribution.(A) If the Corporation distributes to all or substantially
all holders of Common Stock evidences of its indebtedness, shares of capital
stock, securities, cash or other assets (excluding (1) any dividend or
distribution covered by Section
15(a)(i), (2) any rights or warrants covered by Section 15(a)(ii), (3) any
dividend or distribution covered by Section 15(a)(v) and (4) any Spin-Off to
which the provisions set forth in Section 15(a)(iv)(B) apply), each Fixed
Conversion Rate in effect at 5:00 p.m., New York City time, on the date fixed
for the determination of holders of Common Stock entitled to receive such
distribution will be multiplied by a fraction:
  1. the numerator
of which is the Current Market Price, and
  2. the
denominator of which is the Current Market Price minus the Fair Market Value on
such date fixed for determination of the portion of the evidences of
indebtedness, shares of capital stock, securities, cash or other assets so
distributed applicable to one share of Common Stock.
  (B) In the case
of a Spin-Off, each Fixed Conversion Rate in effect at 5:00 p.m., New York City
time, on the date fixed for the determination of holders of Common Stock
entitled to receive such distribution will be multiplied by a
fraction:
  1. the numerator
of which is the sum of the Current Market Price and the Fair Market Value of the
portion of those shares of capital stock or similar equity interests so
distributed applicable to one share of Common Stock as of the fifteenth Trading
Day after the Ex-Date for such distribution (or, if such shares of capital stock
or equity interests are listed on a U.S. national or regional securities
exchange, the average of the Closing Prices of such securities for the 10
consecutive Trading Day period ending on such fifteenth Trading Day),
and
  2. the
denominator of which is the Current Market Price.
  Any
adjustment made pursuant to this clause (iv) shall become effective immediately
after 5:00 p.m., New York City time, on the date fixed for the determination of
the holders of Common Stock entitled to receive such distribution. In the event
that such distribution described in this clause (iv) is not so made, each Fixed
Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay such dividend or
distribution, to such Fixed Conversion Rate that would then be in effect if such
distribution had not been declared. If an adjustment to each Fixed Conversion
Rate is required under this clause (iv) during any conversion period in respect
of shares of Mandatory Convertible Preferred Stock that have been tendered for
conversion, delivery of the shares of Common Stock issuable upon conversion
will be delayed to the extent necessary in order to complete the calculations
provided for in this clause (iv).
  24
 (v)Cash Distributions.If the
Corporation distributes cash to all or substantially all holders
of Common Stock, (1) any cash that is distributed in a Reorganization Event to
which Section 15(e) applies, (2) any dividend or distribution in connection with
the liquidation, dissolution or winding up of the Corporation or (3) any
consideration payable in as part of a tender or exchange offer by the
Corporation or any subsidiary of the Corporation), each Fixed Conversion Rate in
effect at 5:00 p.m., New York City time, on the date fixed for determination of
the holders of Common Stock entitled to receive such distribution will be
multiplied by a fraction:
  (A) the numerator
of which is the Current Market Price, and
  (B) the
denominator of which is the Current Market Price minus the amount per share of
such distribution.
  Any
adjustment made pursuant to this clause (v) shall become effective immediately
after 5:00 p.m., New York City time, on the date fixed for the determination of
the holders of Common Stock entitled to receive such distribution. In the event
that any distribution described in this clause (v) is not so made, each Fixed
Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay such distribution, to such
Fixed Conversion Rate which would then be in effect if such distribution had not
been declared.
  (vi)Self Tender Offers and Exchange
Offers.If the Corporation or any subsidiary of the Corporation
successfully completes a tender or exchange offer pursuant to a Schedule to or
Registration Statement on Form S-4 for Common Stock (excluding any securities
convertible or exchangeable for Common Stock), where the cash and the value of
any other consideration included in the payment per share of Common Stock
exceeds the Current Market Price, each Fixed Conversion Rate in effect at 5:00
p.m., New York City time, on the date of expiration of the tender or exchange
offer (the "Expiration Date")will be multiplied by a fraction:
  (A) the numerator
of which shall be equal to the sum of:
  a. the aggregate
cash and Fair Market Value on the Expiration Date of any other consideration
paid or payable for shares validly tendered or exchanged and not withdrawn as of
the Expiration Date; and
  b. the product
of the Current Market Price and the number of shares of Common Stock outstanding
immediately after the last time tenders or exchanges may be made pursuant to
such tender or exchange offer (the " Expiration Time")on the
Expiration Date; and
  (B)the denominator of
which shall be equal to the product of:
  1. the Current
Market Price; and
  25
 2. the number of
shares of Common Stock outstanding immediately prior to
the Expiration Time on the Expiration Date.
  Any
adjustment made pursuant to this clause (vi) shall become effective immediately
after 5:00 p.m., New York City time, on the Expiration Date. In the event that
the Company or one of its subsidiaries is obligated to purchase shares of Common
Stock pursuant to any such tender offer or exchange offer, but the Company or
such subsidiary is permanently prevented by applicable law from effecting any
such purchases, or all such purchases are rescinded, then each Fixed
Conversation Rate shall be readjusted to be such Fixed Conversion Rate that
would then be in effect if such tender offer or exchange offer had not been
made. Except as set forth in the preceding sentence, if the application of this
clause (vi) to any tender offer or exchange offer would result in a decrease in
each Fixed Conversation Rate, no adjustment shall be made for such tender offer
or exchange offer under this clause (vi). If an adjustment to each Fixed Conversion
Rate is required pursuant to this clause (vi) during any settlement period in
respect of shares of Mandatory Convertible Preferred Stock that have been
tendered for conversion, delivery
of the related conversion consideration will be delayed to the extent necessary
in order to complete the calculations provided for in this clause
(vi).
  (vii) In cases
where the Fair Market Value of assets (including cash), debt securities or
certain rights, warrants or options to purchase securities of the Corporation as
to which Section 15(a)(iv)(A) and Section 15(a)(v) apply, applicable to one
share of Common Stock, distributed to stockholders equals or exceeds the average
of the Closing Prices of the Common Stock over the five consecutive Trading Day
period ending on the Trading Day before the Ex-Date for such distribution,
rather than being entitled to an adjustment in each Fixed Conversion Rate,
Holders of Mandatory Convertible Preferred Stock shall be entitled to receive
upon conversion, in addition to a number of shares of Common Stock equal to the
applicable conversion rate in effect on the applicable Conversion Date, the kind
and amount of assets (including cash), debt securities or rights, warrants or
options comprising the distribution that such Holder would have received if such
Holder had converted its shares of Mandatory Convertible Preferred Stock
immediately prior to the record date for determining the holders of Common Stock
entitled to receive the distribution calculated by multiplying the kind and
amount of assets (including cash), debt securities or rights, warrants or
options comprising the distribution by the number of shares of Common Stock
equal to the Minimum Conversion Rate in effect on the applicable Conversion
Date.
  (viii)Rights Plans.To the extent
that the Corporation has a rights plan in effect with respect to the Common
Stock on any Conversion Date, upon conversion of any Mandatory Convertible
Preferred Stock, Holders shall receive, in addition to the Common Stock, the
rights under such rights plan, unless, prior to such Conversion Date, the rights
have separated from the Common Stock, in which case each Fixed Conversion Rate
shall be adjusted at the time of separation of such rights as if the Corporation
made a distribution to all holders of the Common Stock as described in Section
15(a)(iv), subject to readjustment in the event of the expiration, termination
or redemption of such rights.
  (b)Adjustment for Tax Reasons.The Corporation may make such increases in each
 Fixed
Conversion Rate, in addition to any other increases required by this Section 15,
as the Board of Directors deems it advisable to avoid or diminish any income tax
to holders of the
 Common
Stock resulting from any dividend or distribution of the Corporation's shares of
Common Stock (or issuance of rights or warrants to acquire shares of Common
Stock) or from any event treated as such for income tax purposes or for any
other reasons; providedthat the same proportionate adjustment must be made to each Fixed
Conversion Rate.
  26
 (c)Calculation of
Adjustments; Adjustments to Threshold Appreciation Price, Initial Price and Stock Price.
 
 (i)All adjustments to each Fixed
Conversion Rate shall be calculated tothe nearest 1/10,000th of a share of
Common Stock. Prior to the Mandatory Conversion Date, noadjustment in a Fixed Conversion Rate
shall be required unless such adjustment would require anincrease or decrease of at least one
percent therein;provided ,that any adjustments which byreason of this Section
15(c) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment;provided, howeverthat with respect to adjustments to be
made to the Fixed Conversion Rates in connection with cash dividends paid by the
Corporation,the Fixed
Conversion Rates shall be adjusted regardless of whether such aggregate
adjustmentsamount to one
percent or more of the Fixed Conversion Rates no later than March 15 of eachcalendar year;provided, furtherthat on the earlier of the
Mandatory Conversion Date, theEffective Date of a Cash Acquisition or
the Provisional Conversion Date, adjustments to each Fixed Conversion Rate shall
be made with respect to any such adjustment carried forward andwhich has not been taken into account
before such date.
  (ii) If an
adjustment is made to the Fixed Conversion Rates pursuant to Sections
15(a)(i), 15(a)(ii), 15(a)(iii), 15(a)(iv), 15(a)(v), 15(a)(vi) or 15(b), an
inversely proportional adjustment shall also be made to the Threshold
Appreciation Price and the Initial Price solely for purposes of determining
which of clauses (i), (ii) and (iii) of Section 8(b) shall apply on the
Mandatory Conversion Date. Such adjustment shall be made by dividing each of the
Threshold Appreciation Price and the Initial Price by a fraction, the numerator
of which shall be either Fixed Conversion Rate immediately after such adjustment
pursuant to Sections 15(a)(i), 15(a)(ii), 15(a)(iii), 15(a)(iv), 15(a)(v),
15(a)(vi) or 15(b) and the denominator of which shall be such Fixed Conversion
Rate immediately before such adjustment; provided ,that if such adjustment to the Fixed Conversion Rates is required to be
made pursuant to the occurrence of any of the events contemplated by Sections
15(a)(i), 15(a)(ii), 15(a)(iii), 15(a)(iv), 15(a)(v), 15(a)(vi) or 15(b) during
the period taken into consideration for determining the Applicable Market Value,
appropriate and customary adjustments shall be made to the Fixed Conversion
Rates. The
Corporationshall make appropriate adjustments to the Closing Prices
prior to the relevant Ex-Date used to calculate the Applicable Market Value to
account for any adjustments to the Initial Price, the Threshold Appreciation
Price and the Fixed Conversion Rates that become effective during the period in
which the Applicable Market Value is being calculated. If:
  (A)  the record
date for a dividend or distribution on Common Stock occurs after the end of the
20 consecutive Trading Day period used for calculating the Applicable Market
Value and before the Mandatory Conversion Date, and
  (B) such dividend
or distribution would have resulted in an adjustment of the number of shares
issuable to the Holders of Mandatory Convertible Preferred Stock had such record
date occurred on or before the last Trading Day of such 20 consecutive Trading
Day period, then the Corporation shall deem the Holders of Mandatory Convertible
Preferred Stock to be holders of record of Common Stock for purposes of that
dividend or distribution. In this case, the
Holders of the Mandatory Convertible Preferred Stock would receive the dividend
or distribution on Common Stock together with the number of shares of Common
Stock issuable upon the Mandatory Conversion Date.
  27
 (iii) If an
adjustment is made to the Minimum Conversion Rate pursuant to Sections 15(a)(i),
15(a)(ii), 15(a)(iii), 15(a)(iv), 15(a)(v), 15(a)(vi) or 15(b), a proportional
adjustment shall be made to each Stock Price column heading set forth in the
table included in the definition of "Cash Acquisition Conversion Rate." Such
adjustment shall be made by multiplying each Stock Price included in such table
by a fraction, the numerator of which is the Minimum Conversion Rate immediately
prior to such adjustment and the denominator of which is the Minimum Conversion
Rate immediately after such adjustment.
  (iv) No adjustment
to the Fixed Conversion Rates shall be made if Holders may participate in the
transaction that would otherwise give rise to an adjustment. In addition, the
applicable Conversion Rate shall not be adjusted:
  (A) upon the
issuance of any shares of Common Stock pursuant to any present or future plan
providing for the reinvestment of dividends or interest payable on the
Corporation's securities and the investment of additional optional amounts in
shares of Common Stock under any plan;
  (B) upon the
issuance of any shares of Common Stock or rights or warrants to purchase those
shares pursuant to any present or future employee, director or consultant
benefit plan or program of or assumed by the Corporation or any of its
subsidiaries;
  (C) 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
  (D) for a change
in the par value or no par value of the Common Stock.
  (d)Notice of Adjustment.Whenever the Fixed Conversion Rates are to be adjusted, the
Corporation shall:
  (i) compute such
adjusted Fixed Conversion Rates, Cash Acquisition Conversion Rates and
Provisional Conversion Rates, and prepare and transmit to the Transfer Agent an
Officer's Certificate setting forth such adjusted Fixed Conversion Rates, Cash
Acquisition Conversion Rates and Provisional Conversion Rates, the method of
calculation thereof in reasonable detail and the facts requiring such adjustment
and upon which such adjustment is based;
  (ii) as soon as
practicable following the occurrence of an event that requires an adjustment to
the Fixed Conversion Rates (or if the Corporation is not aware of such
occurrence, as soon as practicable after becoming so aware), provide, or cause
to be provided, a written notice to the Holders of Mandatory Convertible
Preferred Stock of the occurrence of such event; and
  28
 (iii) as soon as
practicable following the determination of such adjusted Fixed Conversion
Rates, Cash Acquisition Conversion Rates and Provisional Conversion Rates,
provide, or cause to be provided, to the Holders of Mandatory Convertible
Preferred Stock a statement setting forth in reasonable detail the method by
which the adjustment to such Fixed Conversion Rates, Cash Acquisition Conversion
Rates and Provisional Conversion Rates was determined and setting forth such
adjusted Fixed Conversion Rates, Cash Acquisition Conversion Rates and
Provisional Conversion Rates.
  (e)Reorganization Events.In the
event of
  (i) any
consolidation or merger of the Corporation with or into another Person (other
than a merger or consolidation in which the Corporation is the continuing
corporation and in which the Common Stock outstanding immediately prior to the
merger or consolidation is not exchanged for cash, securities or other property
of the Corporation or another Person);
  (ii) any sale,
transfer, lease or conveyance to another Person of all or substantially all of
the property and assets of the Corporation;
  (iii) any
reclassification of Common Stock into securities including securities other than
Common Stock; or
  (iv) any statutory
exchange of securities of the Corporation with another Person (other than in
connection with a merger or acquisition),
  (each, a
"Reorganization Event"),each share of Mandatory Convertible Preferred Stock outstanding
immediately prior to such Reorganization Event shall, without the consent of
Holders of Mandatory Convertible Preferred Stock, become convertible into the
kind of securities, cash and other property (the "Exchange Property")that such
Holder would have been entitled to receive if such Holder had converted its
Mandatory Convertible Preferred Stock into Common Stock immediately prior to
such Reorganization Event. For purposes of the foregoing, the type and amount of
consideration that a Holder of Mandatory Convertible Preferred Stock would have
been entitled to receive as a holder of Common Stock in the case of any
Reorganization Event that causes the Common Stock to be converted into the right
to receive more than a single type of consideration determined based in part
upon any form of shareholder election will be deemed to be the weighted average
of the types and amounts of consideration received by the holders of Common
Stock that affirmatively make such an election. In such event, on the applicable
Conversion Date, the applicable conversion rate then in effect will be applied
to determine the amount and value of securities, cash or property a holder of
one share of Common Stock would have received in such transaction (without any
interest thereon and without any right to dividends or distributions thereon
which have a record date that is prior to the Conversion Date). The applicable
Conversion Rate shall be determined based upon the Applicable Market Value of
the Exchange Property.
  29
 For
purposes of this Section 15(e), "Applicable Market Value"shall be deemed to refer to the Applicable Market Value of the Exchange
Property and such value shall be determined (A) with respect to any publicly
traded securities that compose all or part of the Exchange Property, based on
the Closing Price of such securities, (B) in the case of any cash that composes all or
part of the Exchange Property, based on the amount of such cash and (C) in the
case of any other property that composes all or part of the Exchange Property,
based on the value of such property, as determined by a nationally recognized
independent investment banking firm retained by the Corporation for this
purpose. For purposes of this Section 15(e), the term "Closing Price"shall be
deemed to refer to the closing sale price, last quoted bid price or mid-point of
the last bid and ask prices, as the case may be, of any publicly traded
securities that comprise all or part of the Exchange Property. For purposes of
this Section 15(e), references to Common Stock in the definition of "Trading Day"shall be
replaced by references to any publicly traded securities that comprise all or
part of the Exchange Property.
  The above
provisions of this Section 15(e) shall similarly apply to successive
Reorganization Events and the provisions of Section 15 shall apply to any shares
of capital stock of the Corporation (or any successor) received by the holders
of Common Stock in any such Reorganization Event.
  The
Corporation (or any successor) shall, within 20 days of the occurrence of any
Reorganization Event, provide written notice to the Holders of such occurrence
of such event and of the kind and amount of the cash, securities or other
property that constitute the Exchange Property. Failure to deliver such notice
shall not affect the operation of this Section 15(e).
  (16)Replacement Stock
Certificates.(a) If physical certificates are issued, and any of the
Mandatory Convertible Preferred Stock certificates shall be mutilated, lost,
stolen or destroyed, the Corporation shall, at the expense of the Holder, issue,
in exchange and in substitution for and upon cancellation of the mutilated
Mandatory Convertible Preferred Stock certificate, or in lieu of and
substitution for the Mandatory Convertible Preferred Stock certificate lost,
stolen or destroyed, a new Mandatory Convertible Preferred Stock certificate of
like tenor and representing an equivalent amount of shares of Mandatory
Convertible Preferred Stock, but only upon receipt of evidence of such loss,
theft or destruction of such Mandatory Convertible Preferred Stock certificate
and indemnity, if requested, satisfactory to the Corporation and the Transfer
Agent.
  (b) The
Corporation is not required to issue any certificates representing the Mandatory
Convertible Preferred Stock on or after the Mandatory Conversion Date. In lieu
of the delivery of a replacement certificate following the Mandatory Conversion
Date, the Transfer Agent, upon delivery of the evidence and indemnity described
above, shall deliver the shares of Common Stock issuable pursuant to the terms
of the Mandatory Convertible Preferred
Stock formerly evidenced by the certificate.
  (17)Transfer Agent,
Registrar, and Conversion and Dividend Disbursing Agent.The duly
appointed Transfer Agent, Registrar and Conversion and Dividend Disbursing Agent
for the Mandatory Convertible Preferred Stock shall be American Stock Transfer
& Trust Company, New York, New York. The Corporation may, in its sole
discretion, remove the Transfer Agent in accordance with the agreement between
the Corporation and the Transfer Agent; providedthat the Corporation
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
Corporation shall send notice thereof by first-class mail, postage prepaid, to
the Holders of the Mandatory Convertible Preferred Stock.
  30
 (18) Form.(a) The Mandatory Convertible Preferred Stock shall be issued in the form
of one or more permanent global shares of Mandatory Convertible Preferred Stock
in definitive, fully registered form with the global legend (the "Global
Shares Legend")as set forth on the form of Mandatory Convertible
Preferred Stock certificate attached hereto as Exhibit A (each, a "Global
Preferred Share"),which is hereby incorporated in and expressly made a
part of this Certificate. The Global Preferred Shares may have notations,
legends or endorsements required by law, stock exchange rules, agreements to
which the Corporation is subject, if any, or usage ( providedthat any such
notation, legend or endorsement is in a form acceptable to the Corporation). The
Global Preferred Shares shall be deposited on behalf of the Holders of the
Mandatory Convertible Preferred Stock represented thereby with the Registrar, at
its New York office as custodian for DTC or a Depositary, and registered in the
name of the Depositary or a nominee of the Depositary, duly executed by the
Corporation and countersigned and registered by the Registrar as hereinafter
provided. The aggregate number of shares represented by each Global Preferred
Share may from time to time be increased or decreased by adjustments made on the
records of the Registrar and the Depositary or its nominee as hereinafter
provided. This Section 18(a) shall apply only to a Global Preferred Share
deposited with or on behalf of the Depositary. The Corporation shall execute and
the Registrar shall, in accordance with this Section 18, countersign and deliver
initially one or more Global Preferred Shares that (i) shall be registered in
the name of Cede & Co. or other nominee of the Depositary and (ii) shall be
delivered by the Registrar to Cede & Co. or pursuant to instructions
received from Cede & Co. or held by the Registrar as custodian for the
Depositary pursuant to an agreement between the Depositary and the Registrar.
Members of, or participants in, the Depositary ("AgentMembers")shall have no rights under this Certificate, with respect to any Global
Preferred Share held on their behalf by the Depositary or by the Registrar as
the custodian of the Depositary, or under such Global Preferred Share, and the
Depositary may be treated by the Corporation, the Registrar and any agent of the
Corporation or the Registrar as the absolute owner of such Global Preferred
Share for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Corporation, the Registrar or any agent of the Corporation or
the Registrar from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of the Depositary
governing the exercise of the rights of a holder of a beneficial interest in any
Global Preferred Share. The Holder of shares of the Mandatory Convertible
Preferred Stock may grant proxies or otherwise authorize any Person to take any
action that a Holder is entitled to take pursuant to the Mandatory Convertible
Preferred Stock, this Certificate or the Restated Certificate of Incorporation.
Owners of beneficial
interests in Global Preferred Shares shall not be entitled to receive physical
delivery of certificated shares of Mandatory Convertible Preferred Stock, unless
(x) the Depositary is unwilling or unable to continue as Depositary for the
Global Preferred Shares and the Corporation does not appoint a qualified
replacement for the Depositary within 90 days, (y) the Depositary ceases to be a
"clearing agency" registered under the Exchange Act and the Corporation does not
appoint a qualified replacement for the Depositary within 90 days or (z) the
Corporation decides to discontinue the use of book-entry transfer through DTC
(or any successor Depositary). In any such case, the Global Preferred Shares
shall be exchanged in whole for definitive shares of Mandatory Convertible
Preferred Stock in registered form, with the same terms and of an equal
aggregate Liquidation Preference. Definitive shares of Mandatory Convertible
Preferred Stock shall be registered in the name or names of the Person or Person
specified by the Depositary in a written instrument to the
Registrar.
  31
 (b)           
(i) An
Officer shall sign the Global Preferred Shares for the Corporation, in accordance
with the Corporation's bylaws and applicable law, by manual or facsimile
signature.
  (ii) If an Officer
whose signature is on a Global Preferred Share no longer holds that office at
the time the Transfer Agent countersigns the Global Preferred Share, the Global
Preferred Share shall be valid nevertheless.
  (iii) A Global
Preferred Share shall not be valid until an authorized signatory of the Transfer
Agent manually countersigns such Global Preferred Share. The signature shall be
conclusive evidence that such Global Preferred Share has been countersigned
under this Certificate. Each Global Preferred Share shall be dated the date of
its countersignature.
  (19) Miscellaneous.(a) 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 this
Certificate) with postage prepaid, addressed: (i) if to the Corporation, to its
office at 6500 North Mineral Drive, Suite 200, Coeur d'Alene, Idaho 83815-9408
(Attention: General Counsel) or to the Transfer Agent at its Corporate Trust
Office, or other agent of the Corporation designated as permitted by this
Certificate, or (ii) if to any Holder of the Mandatory Convertible Preferred
Stock or holder of shares of Common Stock, as the case may be, to such holder at
the address of such holder as listed in the stock record books of the
Corporation (which may include the records of any transfer agent for the
Mandatory Convertible Preferred Stock or Common Stock, as the case may be), or
(iii) to such other address as the Corporation or any such holder, as the case
may be, shall have designated by notice similarly given.
  (b) The
Corporation shall pay any and all stock transfer and documentary stamp taxes that may
be payable in respect of any issuance or delivery of shares of Mandatory
Convertible Preferred Stock or shares of Common Stock or other securities issued
on account of Mandatory Convertible Preferred Stock pursuant hereto or
certificates representing such shares or securities. The Corporation 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 Mandatory Convertible
Preferred Stock or Common Stock or other securities in a name other than that in
which the shares of Mandatory 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 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 Corporation the amount of any such tax or has established, to
the satisfaction of the Corporation, that such tax has been paid or is not
payable.
  32
 (c)  The
Liquidation Preference and the Dividend Rate each shall be subject to equitable
adjustment whenever there shall occur a stock split, combination,
reclassification or other similar event involving the Mandatory Convertible
Preferred Stock. Such adjustments shall be
determined in good faith by the Board of Directors and submitted by the Board of
Directors to the Transfer Agent.
 
   HECLA
      MINING COMPANYBy:
                  /s/ Philip
      C. WolfPhilip
      C. Wolf, Senior Vice Presidentand
      General Counsel
    /s/Lewis
      E. Walde, VP-CFO
  33
 
 State
of Delaware
 Secretary
ofState
 Division
of Corporations
 Delivered
09:33 PM 01/29/2009
 FILED
09:33 PM 01/29/2009
 SRV 090084825
- 4194766 FILE
 STATE
OF DELAWARE
 CERTIFICATE
OF CORRECTION
  Hecla
Mining Company, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware.
  DOES
HEREBY CERTIFY:
 
 1.
                The
      name of the corporation is Hecla Mining Company.2.
                That
      a Certificate of Designations, Preferences and Rights of Series B
      Cumulative Convertible Preferred Stock (Par Value $0.25 Per Share) of
      Hecla Mining Company (then known as Hecla Holdings Inc.) was filed by the
      Secretary of State of Delaware on August 14, 2006 and that said
      Certificate requires correction as permitted by Section 103 of the General
      Corporation Law of the State of Delaware.3.
                The
      inaccuracy or defect of said Certificate is:Section
      7(M) of the Certificate incorrectly repeats the phrase "payable in respect
      of any transfer involved in the issue or";Section
      9(B) inadvertently omitted the phrase "stock of the Corporation ranking
      prior to the Convertible".4.
                Section
      7(M) of the Certificate is corrected to read in its entirety as
      follows:The
      Corporation will pay any and all documentary, stamp or similar issue or
      transfer taxes payable in respect of the issue or delivery of shares of
      Common Stock or other securities or property on conversion of the
      Convertible Preferred Stock pursuant hereto; vrovided, however, that the Corporation
      shall not be required to pay any tax that may be payable in respect of any
      transfer involved in the issue or delivery of shares of Common Stock or
      other securities or property in a name other than that of the holder of
      the Convertible Preferred Stock to be converted and no such issue or
      delivery shall be made unless and until the person requesting any issue or
      delivery has paid to the Corporation the amount of any such tax or
      established, to the reasonable satisfaction of the Corporation, that such
      tax has been paid.Section
      9(B) of the Certificate is corrected to read in its entirety as
      follows:Unless
      the affirmative vote or consent of the holders of a greater number of
      shares shall then be required by law, the consent of the holders of at
      least 66-2/3% of all of the outstanding shares of Convertible Preferred
      Stock and all other series of Parity Stock upon which such voting power
      shall have been conferred, given in person or by proxy, by a vote at a
      meeting called for the purpose at which the holders of shares of
      Convertible Preferred Stock and such Parity Stock shall vote together as a
      single, class without regard to series, shall be necessary for
      authorizing, effecting or validating the creation, authorization or issue
      of any shares of any class of stock of the Corporation ranking prior to
      the Convertible Preferred Stock as to dividends or upon liquidation,
      dissolution or winding up, or the reclassification of any authorized stock
      of the Corporation into any such prior shares, or the creation,
      authorization or issuance of any obligation or security convertible into
      or evidencing the right to purchase any such prior
  shares.
  1
 
 IN
WITNESS WHEREOF,said
corporation has caused this Certificate of Correction this29thday
ofJanuary,A.D.
2009.
 By:
      /s/ Michael B.
      White
                            Authorized
      Officer
                            
                            Name:Michael.
      B.
      White
                            Print
      or Type
                            
                            Title:Secretary
 2
 
 State
of Delaware
 Secretary
of State
 Division
of Corporations
 Delivered
09:33 PM 01/29/2009
 FILED
09:34 PM 01/29/2009
 SRV
090084827 - 4194766 FILE
 STATE
OF DELAWARE
 CERTIFICATE
OF CORRECTION
  Hecla
Mining Company, a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware.
  DOES
HEREBY CERTIFY:
 1.
                  The
      name of the corporation is Hecla Mining Company.2.
                  That
      a Certificate of Designations of 6.5% Mandatory Convertible Preferred
      Stock of Hecla
      Mining Company was filed by the Secretary of State of Delaware on December14,
      2007 and that said Certificate requires correction as permitted by Section
      103 of the General Corporation Law of the State of
    Delaware.3.
                  The
      inaccuracy or defect of said Certificate is:The
      first sentence of Section 15(a)(v) of the Certificate incorrectly omits
      the term "(excluding"; andThe
      last paragraph of Section 15(a)(vi) of the Certificate contains two
      typographical errors by referring to "the Company" instead of "the
      Corporation".4.
                  The
      first sentence of Section 15(a)(v) of the Certificate is corrected to read
      in its entirety
      as follows:Cash Distributions.If
      the Corporation distributes cash to all or substantially all holders of
      Common Stock, (excluding (1) any cash that is distributed in a
      Reorganization Event to which Section 15(e) applies, (2) any dividend or
      distribution in connection with the liquidation, dissolution or winding up
      of the Corporation or (3) anyconsideration payable in as part of a tender or exchange offer
      by the Corporation or any subsidiary of the Corporation), each Fixed
      Conversion Rate in effect at 5:00 p.m., New York City time, on the date
      fixed for determination of the holders of Common Stock entitled to receive
      such distribution will be multiplied by a
  fraction:(A)
      the numerator of which is the Current Market Price,
and(B)
      the denominator of which is the Current Market Price minus the amount per
      share of such distribution.5.
                  The
      last paragraph of Section 15(a)(vi) of the Certificate is corrected to
      read in its entirety
      as follows:Any
      adjustment made pursuant to this clause (vi) shall become effective
      immediately after 5:00 p.m., New York City time, on the Expiration Date.
      In the event
      that the Corporation or one of its subsidiaries is obligated to purchase
      shares of Common Stock pursuant to any such tender offer or exchange
      offer, but the Corporation or such subsidiary is permanently prevented by
      applicable law from effecting any such purchases, or all such purchases
      are rescinded, then each Fixed Conversation Rate shall be readjusted to be
      such Fixed Conversion Rate that would then be in effect if such tender
      offer or exchange offer had not been made. Except as set forth in the
      preceding sentence, if the application of this clause(vi)
      to any tender offer or exchange offer would result in a decrease in each
      Fixed Conversation Rate, no adjustment shall be made for such tender offer
      or exchange offer under this clause (vi). If an adjustment to each Fixed
      Conversion Rate is required pursuant to this clause (vi) during any
      settlement period in respect of shares of Mandatory Convertible Preferred
      Stock that have been tendered for conversion, delivery of the related
      conversion consideration will be delayed to the extent necessary in order
      to complete the calculations provided for in this clause
      (vi).
  1
  IN WITNESS WHEREOF, said corporation has caused
this Certificate of Correction this29thday
ofJanuary,
A.D. 2009.
  By:
      /s/ Michael B.
      White
                            Authorized
      Officer
                            
                            Name: Michael.
      B.
      White
                            Print
      or Type
                            
                            Title:Secretary
  2
 State
      of Delaware
                    Secretary
      of State
                    Division
      of Corporations
                    Delivered
      08:54 PM02/10/2009
                    FILED
      08:36 PM 02/10/2009
                    SRV
      090125698 - 4194766 FILE
  CERTIFICATE
OF DESIGNATIONS OF
  12%
CONVERTIBLE PREFERRED STOCK
  of
  HECLA
MINING COMPANY.
  Pursuant
to Section 151 of the General Corporation Law
 of the
State of Delaware
  The
undersigned, Michael B. White, Secretary of Hecla Mining Company, a Delaware
corporation (hereinafter called the "Corporation"),does hereby certify that the Board of Directors of the Corporation or an
authorized committee thereof (the "Board
of Directors"),pursuant to the provisions of Sections 103 and 151 of the
General Corporation Law of the State of Delaware, hereby makes this Certificate
of Designations (this "Certificate")and hereby states and certifies that pursuant to the authority expressly
vested in the Board of Directors by the Certificate of Incorporation of the
Corporation (as such may be amended, modified or restated from time to time, the
"Certificate
of Incorporation"),the Board of Directors duly adopted the following
resolutions:
  RESOLVED,
that, pursuant to Article IV of the Restated Certificate of Incorporation (which
authorizes 5,000,000 shares of Preferred Stock, par value $0.25 per share (the
"Preferred Stock")), and the authority
conferred on the Board of Directors, the Board of Directors hereby fixes the
powers, designations, preferences and relative, participating, optional and
other special rights, and the qualifications, limitations and restrictions, of a
series of Preferred Stock.
  RESOLVED,
that each share of such series of new Preferred Stock shall rank equally in all
respects and shall be subject to the following provisions:
  (1)Number
and Designation.Four
Hundred Thousand (400,000) shares of the Preferred Stock of theCorporation
shall be designated as "12% Convertible Preferred Stock" the("12%
Convertible Preferred Stock").
  (2)Certain
Definitions.As used
in this Certificate, the following terms shall have the meanings defined in this
Section 2:
  "12%
Convertible Preferred Stock"shall
have the meaning set forth in Section 1.
 
 "Board
of Directors"shall
have the meaning set forth in the recitals.
  "Business
Day"means any
day other than a Saturday or Sunday or any other day on which commercialbanks in
New York City are authorized or required by law or executive order to
close.
  "Certificate"shall
have the meaning set forth in the recitals.
  "Change-of-Control"means the
existence or occurrence of any of the following: (a) the sale, conveyance or
disposition of all or substantially all of the assets of the Corporation; (b)
the effectuation of a transaction or seriesof
related transactions in which more than fifty percent (50%) of the voting power
of the Corporation is disposed of(excluding
any disposition in connection with a public offering or to widely dispersed
institutional purchasers); (c) the
consolidation, merger or other business combination of the Corporation with or
into any other entity, immediately following which the prior stockholders of the
Corporation fail to own, directly or indirectly, at least fifty percent (50%) of
the voting equity of the surviving entity; (d) a transaction or series of
transactions in which any Person or "group" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended) acquires
more than fifty percent (50%) of the voting equity of the Corporation; (e) the
replacement of a majority of the Board of Directors with individuals who were
not nominated or elected by at least a majority of the directors
at the time of such replacement; or (f) a transaction or series of transactions
that constitutes or results in a "going private transaction" (as defined in
Section 13(e) of the Securities Exchange Act of 1934, as amended and the
regulations of the Commission issued thereunder).
  1
  "Closing
Price"of the
Common Stock or any securities distributed in a Spin-Off, as the case may be,means, as
of any date of determination:
  (a) the
closing price on that date or, if no closing price is reported, the last
reported sale price, of shares of the Common Stock or such other securities on
the New York Stock Exchange on that date; or
  (b) if
the Common Stock or such other securities are not traded on the New York Stock
Exchange, the closing price on that date as reported in composite transactions
for the principal U.S. national or regional securities exchange on which the
Common Stock or such other securities are so traded or, if no closing price is
reported, the last reported sale price of shares of the Common Stock or such
other securities on the principal U.S. national or regional securities exchange
on which the Common Stock or such other securities are so traded on that date;
or
  if
the Common Stock or such other securities are not traded on a U.S. national or
regional securities exchange, the last quoted bid price on that date for the
Common Stock or such other securities in the over- the-counter market as
reported by Pink Sheets LLC or a similar organization; or
  (d) if
the Common Stock or such other securities are not so quoted by Pink Sheets LLC
or a similar organization,
the market price of the Common Stock or such other securities on that date as
determined by a nationally recognized independent investment banking firm
retained by the Corporation for this purpose.
  For the
purposes of this Certificate, all references herein to the closing price and the
last reported sale price of the Common Stock on the New York Stock Exchange
shall be such closing price and last reported sale price as reflected on the
website of the New York Stock Exchange (www.nyse.com)
and as reported by Bloomberg Professional Service; providedthat in the event that there is a discrepancy between the closing price
and the last reported sale price as reflected on the website of the New York
Stock Exchange and as reported by Bloomberg Professional Service, the closing
price and the last reported sale price on the website of the New York Stock
Exchange shall govern.
  "Common
Stock"as used
in this Certificate means the Corporation's common stock, par value $0.25 pershare, as
the same exists at the date of filing of this Certificate relating to the 12%
Convertible Preferred Stock, or any other class of stock resulting from
successive changes or reclassifications of such common stock consisting solely
of changes in par value, or from par value to no par value, or from no par value
to par value.
  "Conversion
Date"shall
have the meaning set forth in Section 4(d).
  "Conversion
Price"shall
mean the conversion price per share of Common Stock for which the 12%Convertible
Preferred Stock is convertible, as such Conversion Price may be adjusted as
provided herein. The initialConversion
Price will be $1.74.
  "Conversion
Rate"shall
have the meaning set forth in Section 8 hereof.
  "Convertible
Preferred Stock"shall
have the meaning set forth in the Credit Agreement.
  "Corporate
Trust Office"means the
principal corporate trust office of the Transfer Agent at which, at anyparticular
time, its corporate trust business shall be
administered.
  "Corporation"shall
have the meaning set forth in the recitals.
  "Credit
Agreement"means
that certain Amended and Restated Credit Agreement,dated as
ofApril 16,2008 (as
amended, supplemented or otherwise modified from time to time), of the
Corporation.
  2
 
 "Current
Market Price"per share
of Common Stock on any date means for the purposes of determiningan
adjustment to the Conversion Rate:
  (a) for
purposes of adjustments pursuant to Section 12(a)(ii), Section 12(a)(iv)(A) in
the event of an adjustment not relating to a Spin-Off, and Section 12(a)(v), the
average of the Closing Prices over the five consecutive Trading Day period
ending on the Trading Day preceding the Ex-Date with respect to the issuance or
distribution requiring such computation;
  (b) for
purposes of adjustments pursuant to Section 12(a)(iv)(B) in theevent of an adjustment relating to a Spin-Off, the average of the Closing
Prices over the first ten consecutive Trading Days commencing on and including
the fifth Trading Day following the Ex-Date for such distribution;
and
  (c) for
purposes of adjustments pursuant to Section 12(a)(vi), the average of the
Closing Prices over the five consecutive Trading Day period ending on the
seventh Trading Day after the Expiration Date of the tender offer or exchange
offer.
  "Dividend
Payment Date"means
January 1, April 1, July 1, and October 1 of each
year.
  "Dividend
Period"means the
period from and including a Dividend Payment Date to but excluding thenext
Dividend Payment Date, except that the initial Dividend Period will commence on
and include the Share Specific Issue Date and will end on and exclude the next
Dividend Payment Date.
  "Dividend
Rate"shall
have the meaning set forth in Section4.
 
 "Exchange
Property"shall
have the meaning set forth in Section 12(e).
  "Ex-Date"when used
with respect to any issuance or distribution, means the first date on which
shares of the Common Stock trade without the right to receive such issuance or
distribution.
  "Expiration
Date"shall
have the meaning set forth in Section 12(a)(vi).
 
 "Expiration
Time"shall
have the meaning set forth in Section 12(a)(vi).
  "Fair
Market Value"means the
fair market value as reasonably determined in good faith by the Board ofDirectors.
  "Holder"means the
person in whose name the shares of the 12% Convertible Preferred Stock areregistered,
which may be treated by the Corporation and the Transfer Agent as the absolute
owner of the shares of12%
Convertible Preferred Stock for the purpose of making payment and settling
conversions and for all otherpurposes.
  "Issue
Date"shall
mean February 10, 2009, the first date of issuance of the 12% Convertible
Preferred Stock.
  "Junior
Stock"means the
Common Stock, the Series A Junior Participating Preferred Stock, $0.25 parvalue per
share, and each other class of capital stock or series of Preferred Stock
established after the Issue Date, theterms of
which do not expressly provide that such class or series ranks senior to or on a
parity with the 12%Convertible
Preferred Stock as to dividend rights or rights upon the Corporation's
liquidation, winding-up or dissolution.
  "Liquidation
Preference"means, as
to the 12% Convertible Preferred Stock, $100.00 per
share.
 
 "Loans"shall
have the meaning as set forth in the Credit
Agreement.
  3
  "Officer"means the
Chairman of the Board of Directors, the Chief Executive Officer, the Chief
FinancialOfficer,
the President, any Vice President, the Treasurer, or the Secretary of the
Corporation.
  "Officer's
Certificate"means a
certificate of the Corporation, signed by any duly authorized Officer of theCorporation.
  "Parity
Stock"means the
Series B Cumulative Convertible Preferred Stock, $0.25 par value per share, the6.5%
Mandatory Convertible Preferred Stock, $0.25 par value per share, any subsequent
issuance of ConvertiblePreferred
Stock pursuant to the Credit Agreement, and each other class of capital stock or
series of Preferred Stockestablished
after the Issue Date, the terms of which expressly provide that such class or
series shall rank on a paritywith the
12% Convertible Preferred Stock as to dividend rights or rights upon the
Corporation's liquidation,winding-up
or dissolution.
  "Person"means a
legal person, including any individual, corporation, estate, partnership, joint
venture,association,
joint-stock company, limited liability company or
trust.
  "Preferred
Stock"shall
have the meaning set forth in the recitals.
  "Record
Date"means
March 15, June 15, September 15, and December 15, immediately preceding theApril 1,
July 1, October 1, and January 1, respectively, Dividend Payment Date. These
Record Dates shall applyregardless
of whether a particular Record Date is a Business
Day.
  "Record
Holder"means a
Holder of record of the 12% Convertible Preferred Stock as such Holderappears
on the stock register of the Corporation at 5:00 p.m., New York City time, on a
Record Date.
  "Redemption
Date"shall
have the meaning set forth in Section 9 hereof.
  "Reorganization
Event"shall
have the meaning set forth in Section 12(e).
  "Restated
Certificate of Incorporation"shall
have the meaning set forth in the recitals.
  "Senior
Stock"means any
class of capital stock or series of Preferred Stock established after the Issue
Date, the terms of which expressly provide that such class or series shall rank
senior to the 12% ConvertiblePreferred
Stock as to dividend rights or rights upon the Corporation's liquidation,
winding-up or dissolution.
  "Share
Specific Issuance Date"shall
have the meaning set forth in Section 4 hereof.
  "Shelf
Registration Statement"shall
mean a shelf registration statement filed with the Securities andExchange
Commission pursuant to Rule 415 under the Securities Act of 1933, as
amended.
  "Spin-Off'means a
dividend or other distribution of shares to all or substantially all holders of
Common Stock consisting of capital stock of, or similar equity interests in, or
relating to a subsidiary or other business unit ofthe
Corporation.
  "Trading
Day"means a
day on which the Common Stock:
  (d) is
not suspended from trading on any U.S. national or regional securities exchange
or association or over-the-counter market at the close of business;
and
  (e) has
traded at least once on the U.S. national or regional securities exchange or
association or over- the-counter market that is the primary market for the
trading of the Common Stock.
  "Transfer
Agent"shall
initially mean American Stock Transfer and Trust Company, the Corporation'sduly
appointed transfer agent, registrar, and conversion and dividend disbursing
agent for the 12% ConvertiblePreferred
Stock.
  4
  "Voting
Rights Class"shall
have the meaning set forth in Section 6 hereof.
  "Voting
Rights Triggering Event"shall
mean the failure of the Corporation to pay dividends on the 12%Convertible
Preferred Stock with respect to six or more Dividend Periods (whether or not
consecutive).
  (3) Ranking.The 12% Convertible Preferred Stock will, with respect to dividend rights
or rights upon the
liquidation, winding-up or dissolution of the Corporation rank (i) senior to all
Junior Stock, (ii) on parity with all Parity Stock and (iii) junior to all
Senior Stock and the Corporation's existing and future
indebtedness.
  (4) Dividends.(a) Holders of shares of outstanding 12% Convertible Preferred Stock
shall be entitled to
receive, when, as and if declared by the Board of Directors, or an authorized
committee of the Board of Directors, out of funds of the Corporation legally
available therefor, cumulative dividends at the rate (the "Dividend
Rate")per annum of 12% per share on the sum of the Liquidation
Preference plus all accrued and unpaid dividends thereon from and including the
date such particular shares of 12% Convertible Preferred Stock were first issued
by the Company (the "Share
Specific Issue Date").The initial issuance of shares of 12% Convertible
Preferred Stock will occur as of February 10,2009 and subsequent issuances are contemplated each July 1 and January 1
thereafter during the term of the Credit Agreement. The Dividend Rate on accrued
but unpaid dividends shall be compounded quarterly on January 1, April 1, July 1
and October 1 of each year.
  Dividends
shall be payable in arrears on each Dividend Payment Date (commencing on the
first Dividend Payment Date) for the Dividend Period ending immediately prior to
such Dividend Payment Date to the Record Holders of 12% Convertible Preferred
Stock on the Record Date applicable to such Dividend Payment Date. If a Dividend
Payment Date is not a Business Day, payment will be made on the next succeeding
Business Day. Such dividends shall be cumulative from the most recent date as to
which dividends shall have been paid or, if no dividends have been paid, from
the Share Specific Issue Date, whether or not in any Dividend Period(s) there
shall have been funds of the Corporation legally available for the payment of
such dividends.
  Dividends
payable for each full Dividend Period will be computed by dividing the Dividend
Rate by four. Dividends payable for any period other than a full Dividend Period
shall be computed on the basis of the actual number of days elapsed during the
period over a 360-day year (consisting of twelve 30-day months).
  (b) No
dividend shall be declared or paid upon any outstanding share of 12% Convertible
Preferred Stock with respect to any Dividend Period unless all dividends for all
preceding Dividend Periods shall have been declared and paid upon all
outstanding shares of 12% Convertible Preferred Stock.
  (c)
Holders of shares of 12% Convertible Preferred Stock shall not be entitled to
any dividends on the 12% Convertible Preferred Stock in excess of full
cumulative dividends.
  (d)
Dividends on any share of 12% Convertible Preferred Stock converted to Common
Stock shall cease to accumulate on the date of its conversion (the "Conversion
Date")to Common Stock pursuant to this Certificate or the Redemption
Date (provided the Corporation has not defaulted on paying the redemption price
on the Redemption Date).
  (e) The
Corporation shall disclose in its annual and quarterly reports on Form 10-K and
Form 10-Q, respectively, filed with the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended, the amount of any accumulated
and unpaid dividends on 12% Convertible Preferred Stock for Dividend Periods
ending prior to the last date of the relevant quarterly or annual period as to
which such report relates.
  (f) Each
payment of a declared dividend on the 12% Convertible Preferred Stock shall be
made in cash.
  (5)Payment
Restrictions.(a)
Unless all accumulated and unpaid dividends on 12% Convertible Preferred
Stock for all prior Dividend Periods shall have been paid in full, the
Corporation shall not:
  5
 (i)
declare or pay any dividend or make any distribution of assets on any Junior
Stock, other than dividends or distributions in the form of Junior Stock and
cash solely in lieu of fractional shares in connection with any such dividend or
distribution;
 
 (ii)
redeem, purchase or otherwise acquire any shares of Junior Stock or pay or make
any monies available for a sinking fund for such shares of Junior Stock, other
than (A) upon conversion or exchange for other Junior Stock, (B) the purchase of
fractional interests in shares of any Junior Stock pursuant to the conversion or
exchange provisions of such Junior Stock, or (C) the forfeiture of unvested
shares of restricted stock or share withholdings upon exercise, delivery or
vesting of equity awards granted to officers, directors and employees upon
termination of employment or service with the Corporation or any of its
subsidiaries;
 
 (iii)
except as provided in Section 5(b), declare or pay any dividend or make any
distribution of assets on any shares of Parity Stock, other than (A) dividends
or distributions in the form of Parity Stock or Junior Stock or (B) cash solely
in lieu of fractional shares in connection with any such dividend or
distribution; or
 
 (iv)
redeem, purchase or otherwise acquire any shares of Parity Stock, except upon
conversion into or exchange for other Parity Stock or Junior Stock and cash
solely in lieu of fractional shares in connection with any such conversion or
exchange.
 
 (b) When
dividends are not paid in full upon the shares of 12% Convertible Preferred
Stock, all dividends
declared on 12% Convertible Preferred Stock and any other Parity Stock shall be
paid either:
 
 (i) pro
rata so that the amount of dividends so declared on the shares of 12%
Convertible Preferred Stock and each such other class or series of Parity Stock
shall in all cases bear to each other the same ratio as accumulated dividends on
theshares of 12% Convertible Preferred Stock and such class or series of
Parity Stock bear to each other; or
 
 (ii) on
another basis that is at least as favorable to the Holders of 12% Convertible
Preferred Stock entitled to receive such dividends.
  (6) Voting
Rights.(a) The Holders of 12% Convertible Preferred Stock shall have no
voting rights except as
set forth below or as otherwise required by Delaware law from time to
time:
  (i) If
and whenever at any time or times a Voting Rights Triggering Event occurs, then
the Holders of shares of 12% Convertible Preferred Stock, voting separately as a
single class with any Parity Stock having similar voting rights that are
exercisable (the "VotingRights
Class"),shall be entitled at the Corporation's next regular or special
meeting of shareholders of the Corporation to elect two additional directors to
the Board of Directors. Upon the election of any such additional directors, the
number of directors that comprise the Board of Directors shall be increased by
such number of additional directors.
  (ii) Such
voting rights may be exercised at a special meeting of the holders of the shares
of the
Voting Rights Class, called as hereinafter provided, or at any annual meeting of
shareholders held for the purpose of electing directors, and thereafter at each
such annual meeting at which any of such two directorships shall be vacant or
expiring until such time as all dividends in arrears on the shares of 12%
Convertible Preferred Stock shall have been paid in full, at which time or times
such voting rights and the term of the directors elected pursuant to Section
6(a)(i) shall terminate. So long as the Corporation's Certificate of
Incorporation provides for a classified board, such additional directors shall be
elected for terms of one, two or three years so as to cause the number of
directors in each class to be as nearly equal in number as
possible.
  6
  (iii) At
any time when voting rights pursuant to Section 6(a)(i) shall have vested and be
continuing in Holders of 12% Convertible Preferred Stock, or if a vacancy shall
exist in the office of any such additional director, the Board of Directors may
call, and, upon written request of the Holders of record of at least 25% of the
outstanding shares of 12% Convertible Preferred Stock addressed to the chairman
of the Board of Directors shall call, a special meeting of the holders of shares
of the Voting Rights Class (voting separately as a single class with any Parity
Stock having similar rights that are exercisable) for the purpose of electing
the directors that such holders are entitled to elect. Such meeting shall be
held at the earliest practicable date upon the notice required for annual
meetings of shareholders at the place for holding annual meetings of
shareholders of the Corporation, or, if none, at a place designated by the Board ofDirectors. Notwithstanding the provisions of this Section 6(a)(iii), no
such special meeting shall be called during a period within the 60 days
immediately preceding the date fixed for the next annual meeting of shareholders
in which such case, the election of directors pursuant to Section 6(a)(i) shall
be held at such annual meeting of shareholders.
 
 (iv) At
any meeting at which the holders of the Voting Rights Class shall have the right
to elect directors as provided herein, the presence in person or by proxy of the
holders of shares representing more than 50% in voting power of the then
outstanding shares of the Voting Rights Class shall be required and shall be
sufficient to constitute a quorum of such class for the election of directors by
such class. The affirmative vote of the holders of the Voting Rights Class
constituting a majority of the Voting Rights Class present at such meeting, in
person or by proxy, shall be sufficient to elect any such director.
 
 (v) Any
director elected pursuant to the voting rights created under this Section 6(a)
shall hold office until the next annual meeting of shareholders at which such
director's class is being elected (unless such term has previously terminated
pursuant to Section 6(a)(ii)) and any vacancy in respect of any such director
shall be filled only by vote of the remaining director so elected by holders of
the Voting Rights Class, or if there be no such remaining director, by the
holders of shares of the Voting Rights Class at a special meeting called in
accordance with the procedures set forth in this Section 6(a), or, if no such
special meeting is called, at the next annual meeting of
shareholders.
 
 (vi) So
long as any shares of 12% Convertible Preferred Stock remain outstanding, unless
a greater percentage shall then be required by law, the Corporation shall not,
without the affirmative vote or consent of the holders of at least 66 2/3% of
the outstanding shares of 12% Convertible Preferred Stock and all other shares
of the Voting Rights Class, voting separately as a single class, in person or by
proxy, at an annual meeting of the Corporation's shareholders or at a special
meeting called for such purpose, or by written consent in lieu of such meeting,
alter, repeal or amend, whether by merger, consolidation, combination,
reclassification or otherwise, any provisions of the Restated Certificate of
Incorporation or this Certificate if the amendment would amend, alter or affect
the powers, preferences or rights of 12% Convertible Preferred Stock so as to
adversely affect the Holders thereof, including, without limitation, the
creation of, increase in the authorized number of, or issuance of, shares of any
class or series of Senior Stock.
 
 (vii) In
exercising the voting rights set forth in this Section 6(a), each share of 12%
Convertible Preferred Stock and any other shares of the Voting Rights Class
participating in the votes described above shall be in proportion to the
liquidation preference of such share.
 
 (b) The
Corporation may authorize, increase the authorized amount of, or issue any
shares of any class or
series of Parity Stock or Junior Stock, without the consent of the Holders of
12% Convertible Preferred Stock, and in taking such actions the Corporation
shall not be deemed to have affected adversely the powers, preferences or rights
of Holders of shares of 12% Convertible Preferred Stock.
  7
 
 (7) Liquidation,
Dissolution or Winding-Up.(a) In
the event of any liquidation, winding-up or dissolution
of the Corporation,
whether voluntary orinvoluntary, each Holder of 12% Convertible
Preferred Stock shall be entitled to receive the Liquidation Preference plus an
amount equal to accumulated and unpaid dividends on the shares to the date fixed for
liquidation, winding-up ordissolution to be paid out of the assets of
the Corporation available for distribution to its shareholders, after
satisfaction of liabilities owed to the Corporation's creditors and
distributions to holders of Senior Stock, and before any payment or distribution
is made on any Junior Stock, including, without limitation, Common
Stock.
  (b)
Neither the sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all the assets or
business of the Corporation (other than in connection with the liquidation,
winding-up or dissolution of its business) nor the merger or consolidation of
the Corporation into or with any other Person shall be deemed to be a
liquidation, winding-up or dissolution, voluntary or involuntary, for the
purposes of this Section 7.
  (c) After
the payment to the Holders of the shares of 12% Convertible Preferred Stock of
full preferential amounts provided for in this Section 7, the Holders of 12%
Convertible Preferred Stock as such shall have no right or claim to any of the
remaining assets of the Corporation.
  (d) If
upon the voluntary or involuntary liquidation, winding-up or dissolution of the
Corporation, the amounts payable with respect to the Liquidation Preference plus
an amount equal to accumulated and unpaid dividends of the 12% Convertible
Preferred Stock and all Parity Stock are not paid in full, the holders of the
12% Convertible Preferred stock and the Parity Stock will share equally and
ratably in any distribution of the Corporation's assets in proportion to the
respective liquidation preference and an amount equal to the accumulated and
unpaid dividends to which such holders are entitled.
  (8) Conversion.Holders
of shares of 12% Convertible Preferred Stock shall have the right to
convert all or a
portion of such shares into shares of Common Stock, as follows:
  (a)
Subject to and upon compliance with the provisions of this Section 8, a holder
of shares of 12% Convertible Preferred Stock shall have the right, at his or her
option, at any time after the Issue Date, to convert such shares into the number
of fully paid and nonassessable shares of Common Stock obtained by dividing the
sum of the aggregate Liquidation Preference of such shares plus all accrued and
unpaid dividends thereon by the Conversion Price (such number of shares, the
"Conversion Rate") by surrendering such shares to be converted as provided
herein; provided, however, that the right to convert shares called for
redemption shall terminate at the close of business on the date preceding the
Redemption Date, unless the corporation shall default in making payment of the
cash payable upon such redemption. Certificates will be issued for the remaining
shares of 12% Convertible Preferred Stock in any case in which fewer than all of
the shares of 12% ConvertiblePreferred Stock represented by a
certificate are converted.
  (b) In
order to exercise the conversion right, the holder of shares of 12% Convertible
Preferred Stock to be converted shall surrender the certificate or certificates
representing such shares, duly endorsed or assigned to the Corporation or in
blank, at the office of the Transfer Agent in the Borough of Manhattan, City of
New York, accompanied by written notice to the Corporation that the holder
thereof elects to convert 12% Convertible Preferred Stock. Unless the shares
issuable on conversion are to be issued in the same name as the name in which
such share of 12% Convertible Preferred Stock is registered, each share
surrendered for conversion shall be accompanied by instruments of transfer, in
the form reasonably satisfactory to the Corporation, duly executed by the holder
or such holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid).
  (c)
Holders of shares of 12% Convertible Preferred Stock at the close of business on
a dividend payment record date shall be entitled to receive the dividend payable
on such shares on the corresponding Dividend Payment Date notwithstanding the
conversion thereof following such dividend payment record date and prior to such
Dividend Payment Date. However, shares of 12% Convertible Preferred Stock
surrendered for conversion during the period between the close of business on
any dividend payment record date and the opening of business on the
corresponding Dividend Payment Date must be accompanied by payment of an amount
equal to the dividend payable on such shares on such Dividend Payment Date. A
holder of shares of 12% Convertible Preferred Stock on a
dividend payment record date who (or whose transferee) tenders any such shares
for conversion into shares of Common Stock on such Dividend Payment Date will
receive the dividend payable by the Corporation on such shares of Convertible
Preferred Stock on such date, and the converting holder need not include payment
of the amount of such dividend upon surrender of shares of 12% Convertible
Preferred Stock for conversion, but such dividend amount shall not be deemed
accumulated and unpaid for purposes of calculating the conversion hereunder.
Except as provided above, the Corporation shall make no payment or allowance for
unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the shares of Common Stock issued upon such
conversion.
  8
  (d) As
promptly as practicable after the surrender of certificates for shares of 12%
Convertible Preferred Stock as aforesaid, the Corporation shall issue and
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with the provisions of
this Section 8, and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided in this Section
8.
  (e) Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the date on which the certificates for shares of 12% Convertible
Preferred Stock shall have been surrendered and such notice (and if applicable
payment of an amount equal to the dividend payable on such shares) received by
the Corporation as aforesaid, and the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time on such date and such
conversion shall be
at theConversion Rate in effect at such time on such date, unless the
stock transfer books of the Corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on which
such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such shares shall have been
surrendered and such notice received by the Corporation.
  (f) In
the event that a Holder of shares of 12% Convertible Preferred Stock shall not
by written notice designate the name in which shares of Common Stock to be
issued upon conversion of such 12% Convertible Preferred Stock should be
registered or the address to which the certificate or certificates representing
such shares of Common Stock should be sent, theCorporation shall be entitled to register such shares, and make such
payment, in the name of the Holder of such 12% Convertible Preferred Stock as
shown on the records of the Corporation and to send the certificate or
certificates representing such shares of Common Stock to the address of such
Holder shown on the records of the Corporation.
  (9) Redemption.
  (a) The
Corporation shall redeem all outstanding 12% Convertible Preferred Stock on
February 10, 2014, at a price equal to the sum of 100% of the Liquidation
Preference plus all accumulated and unpaid dividends thereon, from and including
the Share Specific Issue Date.
  (b) Upon
the occurrence of a Change-of-Control of the Corporation, shares of the 12%
Convertible Preferred Stock shall be redeemable at the option of a Holder
thereof at a price equal to 101% of the Liquidation Preference plus all
accumulated and unpaid dividends thereon, from and including the Share Specific
Issue Date, by delivery of a notice to the Corporation that the Holder elects to
have the Corporation redeem all or a portion of its shares of 12% Convertible
Preferred Stock in accordance with Section 9(b) hereof. Upon its receipt of the
Holder's notice referred to in the immediately preceding sentence, the
Corporation shall set a Redemption Date as soon as practicable (and notify the
Holder thereof in the manner provided in Section 9(e) hereof, except that the
Corporation shall so notify the Holder within 10days from the Corporation's receipt of the Holder's notice); provided
that in any event the Corporation shall not set such Redemption Date for a date
that is later than the earlier of (i) 10 days prior to the Change-of-Control or,
if such Change-of-Control was not authorized by the Corporation's Board of
Directors at least 15 days prior to the Change-of-Control, as soon as is
practicable prior to the Change-of-Control, or (ii) 30 days from the receipt of
the Corporation of the Holder's notice. The Corporation shall provide the
Holders notice of the Change-of-Control at least 45 days prior to the
Change-of-Control or, if such time frame is not practicable under the
circumstances, as soon as is practicable.
  9
 
 
 (c)
Subject to the immediately succeeding sentence, the shares of 12% Convertible
Preferred Stock shall be
redeemable at the option of the Corporation, in whole, or, from time to time, in
part, out of funds legally available for such purpose, at any time, as
follows:
  (i) from
February 10, 2009 through March 31, 2011, at a price equal to 103% of the sum of
the Liquidation Preference plus all accumulated and unpaid dividends thereon,
from and including the Share Specific Issue Date;
  (ii) from
April 1,2011 through March 31, 2012, at a price equal to 102% of the sum of the
Liquidation Preference plus all accumulated and unpaid dividends thereon, from
and including the Share Specific Issue Date;
  (iii)
from April 1, 2012 through March 31, 2013, at a price equal to 101% of the sum
of the Liquidation Preference plus all accumulated and unpaid dividends thereon,
from and including the Share Specific Issue Date; and
  (iv) from
April 1, 2013 and thereafter, at a price equal to 100% of the sum of the
Liquidation Preference plus all accumulated and unpaid dividends thereon, from
and including the Share Specific Issue Date;
  Notwithstanding
the foregoing sentence, the Corporation shall not have the right to redeem the
12% Convertible Preferred Shares pursuant to the foregoing sentence in the event
that any Loans under the Credit Agreement are then outstanding.
  (d) If
fewer than all of the outstanding shares of 12% Convertible Preferred Stock are
to be redeemed pursuant
to Section 9(c) hereof, the number of shares to be so redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined pro rata or by lot or in such other manner and subject to such
regulations as the Board of Directors in its sole discretion shall
prescribe.
  (e) At
least 45 days, but not more than 75 days, prior to the date fixed for the
redemption of shares of 12%
Convertible Preferred Stock, a written notice shall be mailed in postage prepaid
envelope to each holder of record of the shares of 12% Convertible Preferred
Stock to be redeemed, addressed to such holder at his or her post office address
as shown on the records of the Corporation, notifying such holder that its
shares are subject to redemption, stating the date fixed for redemption thereof
(the "Redemption Date"), and calling upon such holder to surrender to the
Corporation, on the Redemption Date at the place designated in such notice, his
or her certificate or certificates representing the number of shares specified
in such notice of redemption. On or after the Redemption Date, such holder of
shares of 12% ConvertiblePreferred Stock to be redeemed shall present and surrender his or her
certificate or certificates for such shares to the Corporation at the place
designated in such notice and thereupon the redemption price of such shares
shall be paid to the order of the person whose name appears on such certificate
or certificates as theowner thereof and such surrendered certificate shall be cancelled. In
case less than all the shares represented by any such certificates are redeemed,
a new certificate shall be issued representing the unredeemed
shares.
  From and after the
Redemption Date (unless the Corporation defaults in payment of the redemption
price), all dividends on the shares of Convertible Preferred Stock designated
for redemption in such notice shall cease to accrue, and all rights of the
holders thereof as stockholders of the Corporation, except the right to receive
the redemption price of such shares (including an amount equal to all accrued
and unpaid dividends up to the Redemption Date) upon the surrender of
certificates representing thesame, shall cease and terminate and such shares shall not thereafter be
transferred (except with the consent of the Corporation) on the books of the
Corporation, and such shares shall not be deemed to be outstanding for any
purpose whatsoever; provided
however,in the case of the Redemption Date falling after a dividend
payment record date and prior to the related Dividend Payment Date, the holders
of Convertible Preferred Stock at the close of business on such record date will
be entitled to receive the dividend payable on such shares on the corresponding
Dividend Payment Date, notwithstanding the redemption of such shares following
such dividend payment record date, but such dividend amount shall not be deemed
accumulated and unpaid for purposes
ofcalculating the redemption
price hereunder.
  10
  At its
election, the Corporation, prior to the Redemption Date, may deposit the
redemption price (including an amount equal to all accrued and unpaid dividends
up to the Redemption Date) of the shares of 12% Convertible Preferred Stock so
called for redemption in trust for the holders thereof with a bank or trust
company having a capital surplus and undivided profits aggregating not less than
$50,000,000) in the borough of Manhattan, city and state of New York, or in any
other city in which the corporation at the time shall maintain a transfer agency
with respect to such shares, in which case the aforesaid notice to holders of
shares of 12% Convertible Preferred Stock to be redeemed shall (i) state the
date of such deposit, (ii) shall specify the office of such bank or trust
company as the place of payment of the redemption price and (iii) shall call
upon such holders to surrender the certificates representing such shares at such
place on or after the date fixed in such redemption notice (which shall not be
later than the Redemption Date) against payment of the redemption price
(including an amount equal to all accrued and unpaid dividends up to the
Redemption Date). Any interest accrued on such funds shall be paid to the
corporation from time to time. Any moneys so deposited which shall remain
unclaimed by the holders of such shares of 12% Convertible Preferred Stock at
the end of two years after the Redemption Date shall be returned by such bank or
trust company to the Corporation.
  If a
notice of redemption has been given pursuant to this section 9 and any holder of
shares of 12% Convertible Preferred Stock shall, prior to the close of business
on the day preceding the Redemption Date, given written notice to the
corporation pursuant to Section 8 above of the conversion of any or all of the
shares to be redeemed held by such holder (accompanied by a certificate or
certificates for such shares, duly endorsed or assigned to the Corporation, and
any necessary transfer tax payment, as required by Section 8 above), then such
redemption shall not become effective as to such shares to be converted, such
conversion shall become effective as provided in Section 8 above, and any moneys
set aside by the Corporation for the redemption of such shares of converted 12%
Convertible Preferred Stock shall revert to the general funds of the
Corporation.
  (10)
Reservation
of Common Stock.(a) The Corporation shall at all times reserve and keep
available out of
its authorized and unissued Common Stock or shares held in the treasury of the
Corporation, solely for issuance upon the conversion of shares of 12%
Convertible Preferred Stock as herein provided, free from any preemptive or
other similar rights, such number of shares of Common Stock as shall from time
to time be issuable upon the conversion of all the shares of 12% Convertible
Preferred Stock then outstanding. For purposes of this Section 10(a), the number
of shares of Common Stock that shall be deliverable upon the conversion of all
outstanding shares of 12% Convertible Preferred Stock shall be computed as if at
the time of computation all such outstanding shares were held by a single
Holder.
  (a)
Notwithstanding the foregoing, the Corporation shall be entitled to deliver upon
conversion of shares of 12% Convertible Preferred Stock, as herein provided,
shares of Common Stock reacquired and held in the treasury of the Corporation
(in lieu of the issuance of authorized and unissued shares of Common Stock), so
long as any such treasury shares are free and clear of all liens, charges,
security interests or encumbrances (other than liens, charges, security
interests and other encumbrances created by the Holders).
  (b) All
shares of Common Stock delivered upon conversion of the 12% 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) Prior
to the delivery of any securities that the Corporation shall be obligated to
deliver upon conversion of the 12% Convertible Preferred Stock, the Corporation
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. Without limiting the foregoing, the Corporation hereby covenants and
agrees that it shall use its reasonable best efforts to (i) fileas soon as practicable (but in any event within 90 days of the Issue
Date) a Shelf Registration Statement with respect to the resale of Common Stock
issuable upon conversion of the 12% Convertible Preferred Stock, (ii) cause such
registration statement to become effective within 180 days of the Issue Date,
and (iii) maintain the effectiveness of such registration statement until the
earlier of such time as all such shares are freely tradable by the holders
thereof without registration or two years from the date in which all Holders of
the 12% Convertible Preferred Stock will have exercised their conversion rights
with respect to all of their shares and have
beenissued Common Stock in connection
therewith; provided that, if the Corporation is not eligible to register the
resale of shares by a Holder on Form S-3, at a Holder's request, registration
shall be effected on Form S-1 (or any applicable successor form).
  11
  (d) The
Corporation hereby covenants and agrees that, if at any time the Common Stock
shall be listed on
the New York Stock Exchange or any other U.S. national securities exchange or
automated quotation system, the Corporation shall, 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 Common Stock issuable upon conversion of the 12% Convertible
Preferred Stock; provided,
however,that if the rules of such exchange or automated quotation system
permit the Corporation to defer the listing of such Common Stock until the first
conversion of 12% Convertible Preferred Stock into Common Stock in accordance
with the provisions hereof, the Corporation covenants to list such Common Stock
issuable upon conversion of the 12% Convertible Preferred Stock in accordance
with the requirements of such exchange or automated quotation system at such
time.
  (11)Fractional
Shares.(a) No
fractional shares of Common Stock shall be issued as a result of any conversion
of shares of 12% Convertible Preferred Stock.
  (a) In
lieu of any fractional share of Common Stock otherwise issuable in respect of
any conversion pursuant to Section 8, the Corporation shall pay an amount in
cash (computed to the nearest cent) equal to the same fraction of the Closing
Price of the Common Stock on the second Trading Day immediately preceding the
Conversion Date.
  (b) If
more than one share of the 12% Convertible Preferred Stock is surrendered for
conversion at one time by or for the same Holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of the 12% Convertible Preferred Stock so
surrendered.
  (12)Anti-Dilution
Adjustments to the Conversion Rate.(a) The
Conversion Rate shall be subject to the
following adjustments:
  (i)Stock
Dividends and Distributions.If the
Corporation issues Common Stock to all or substantially
all of the holders of Common Stock as a dividend or other distribution, the
Conversion Rate in effect at 5:00 p.m., New York City time, on the date fixed
for determination of the holders of Common Stock entitled to receive such
dividend or other distribution will be divided by a fraction:
 
 (A) the
numerator of which is the number of shares of Common Stock outstanding at 5:00
p.m., New York City time, on the date fixed for such determination,
and
 
 (B) the
denominator of which is the sum of the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such
determination and the total number of shares of Common Stock constituting such
dividend or other distribution.
  Any
adjustment made pursuant to this clause (i) will become effective immediately
after 5:00 p.m., New York City time, on the date fixed for such determination. If any
dividend or distribution described in this clause (i) is
declared but not so paid or made, the Conversion Rate shall be readjusted,
effective as of the date the Board of Directors publicly announces its decision
not to make such dividend or distribution, to the Conversion Rate that would be
in effect if such dividend or distribution had not been declared. For the
purposes of this clause (i), the number of shares of Common Stock outstanding at
5:00 p.m., New York City time, on the date fixed for such determination shall
not include shares held in treasury by the Corporation but shall include any
shares issuable in respect of any scrip certificates issued in lieu of fractions
of shares of Common Stock. The Corporation shall not pay any dividend or make
any distribution on shares of Common Stock held in treasury by the
Corporation.
  12
 
 (ii)
Issuance
of Stock Purchase Rights.If the Corporation issues to all or
substantially allholders
of Common Stock rights or warrants (other than rights or warrants issued
pursuant to a dividend reinvestment plan or share purchase plan or other similar
plans), entitling such holders, for a period of up to 45 calendar days from the
date of issuance of such rights or warrants, to subscribe for or purchase shares
of Common Stock at a price per share less than the CurrentMarket
Price, the Conversion Rate in effect at 5:00 p.m., New York City time, on the
date fixed for determination of the holders of Common Stock entitled to receive
such rights or warrants will be increased by multiplying the Conversion Rate by
a fraction:
  (A) the
numerator of which is the sum of the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such
determination and the number of shares of Common Stock issuable pursuant to such
rights or warrants, and
  (B) the
denominator of which is the sum of the number of shares of Common Stock
outstanding at 5:00 p.m., New York City time, on the date fixed for such
determination and the number of shares of Common Stock equal to the quotient of
the aggregate offering price payable to exercise such rights or warrants divided
by the Current Market Price.
  Any
adjustment made pursuant to this clause (ii) will become effective immediately
after 5:00 p.m., New York City time, on the date fixed for such determination.
In the event that such rights or warrants described in this clause (ii) are not
so issued, the Conversion Rate shall be readjusted, effective as of the date the
Board of Directors publicly announces its decision not to issue such rights or
warrants, to the Conversion Rate that would then be in effect if such issuance
had not been declared. To the extent that such rights or warrants are not
exercised prior to their expiration or shares of Common Stock are otherwise not
delivered pursuant to such rights or warrants upon the exercise of such rights
or warrants, the Conversion Rate shall be readjusted to the Conversion Rate that
would then be in effect had the adjustment made upon the issuance of such rights
or warrants been made on the basis of the delivery of only the number of shares
of Common Stock actually delivered. In determining the aggregate offering price
payable for such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants and the value of such
consideration (if other than cash, the Fair Market Value thereof). For the
purposes of this clause (ii), the number of shares of Common Stock at the time
outstanding shall not include shares held in treasury by the Corporation but
shall include any shares issuable in respect of any scrip certificates issued in
lieu of fractions of shares of Common Stock. The Corporation shall not issue any
such rights or warrants in respect of shares of Common Stock held in treasury by
the Corporation.
  (iii)Subdivisions
and Combinations of the Common Stock.If
outstanding shares of CommonStock
shall be subdivided into a greater number of shares of Common Stock or combined
into a lesser number of shares of Common Stock, the Conversion Rate in effect at
5:00 p.m., New York City time, on the effective date of such subdivision or
combination shall be multiplied by a fraction:
  (A) the
numerator of which is the number of shares of Common Stock that would be
outstanding immediately after, and solely as a result of, such subdivision or
combination, and
  (B) the
denominator of which is the number of shares of Common Stock outstanding
immediately prior to such subdivision or combination.
  Any
adjustment made pursuant to this clause (iii) shall become effective immediately
after 5:00 p.m., New York City time, on the effective date of such subdivision
or combination.
  (iv)
Debt
or Asset Distribution.(A) If the Corporation distributes to all or
substantially allholders
of Common Stock evidences of its indebtedness, shares of capital stock,
securities, cash or other assets (excluding (1)any dividend or distribution
covered by Section 12(a)(i), (2) any rights or warrants covered by Section
12(a)(ii), (3) any dividend or distribution covered bySection
12(a)(v) and (4)any Spin-Off to which the
provisions set forth in Section 12(a)(iv) (B)apply),
the Conversion Rate in effect at 5:00 p.m., New York City time, on the date
fixed for the determination of holders of Common Stock entitled to receive such
distribution will be multiplied by a fraction:
  13
 
 1. the
numerator of which is the Current Market Price, and
 
 2. the
denominator of which is the Current Market Price minus the Fair Market Value on
such date fixed for determination of the portion of the evidences of
indebtedness, shares of capital stock, securities, cash or other assets so
distributed applicable to one share of Common Stock.
 
 (B) In
the case of a Spin-Off, the Conversion Rate in effect at 5:00 p.m., New York
City time, on
the date fixed for the determination of holders of Common Stock entitled to
receive such distribution will be multiplied by a fraction:
  1. the
numerator of which is the sum of the Current Market Price and the Fair Market
Value of the
portion of those shares of capital stock or similar equity interests so
distributed applicable to one share of Common Stock as of the fifteenth Trading
Day after the Ex- Date for such distribution (or, if such shares of capital
stock or equity interests are listed on a U.S. national or regional securities
exchange, the average of the Closing Prices of such securities for the 10
consecutive Trading Day period ending on such fifteenth Trading Day),
and
  2. the
denominator of which is the Current Market Price.
  Any
adjustment made pursuant to this clause (iv) shall become effective immediately
after 5:00 p.m., New York City time, on the date fixed for the determination of
the holders of Common Stock entitled to receive such distribution. In the event
that such distribution described in this clause (iv) is not so made, the
Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay such dividend or
distribution, to the Conversion Rate that would then be in effect if such
distribution had not been declared. If an adjustment to the Conversion Rate is
required under this clause (iv) during any conversion period in respect of
shares of 12% Convertible Preferred Stock that have been tendered for
conversion, delivery of the shares of Common Stock issuable upon conversion will
be delayed to the extent necessary in order to complete the calculations
provided for in this clause (iv).
  (v)Cash
Distributions.If the
Corporation distributes cash to all or substantially all holders of Common
Stock, (excluding any (1) any cash that is distributed in a Reorganization Event
to which Section 12(e) applies, (2) any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Corporation or (3) any
consideration payable in as part of a tender or exchange offer by the
Corporation or any subsidiary of the Corporation), the Conversion Rate in effect
at 5:00 p.m., New York City time, on the date fixed for determination of the
holders of Common Stock entitled to receive such distribution will be multiplied
by a fraction:
 
 (A) the
numerator of which is the Current Market Price, and
 
 (B) the
denominator of which is the Current Market Price minus the amount per share of
such distribution.
  Any
adjustment made pursuant to this clause (v) shall become effective immediately
after 5:00 p.m., New York City time, on the date fixed for the determination of
the holders of Common Stock entitled to receive such distribution. In the event
that any distribution described in this clause (v) is not so made, the
Conversion Rate shall be readjusted, effective as of the date the Board of
Directors publicly announces its decision not to pay such distribution, to the
Conversion Rate which would then be in effect if such distribution had not been
declared.
  14
 
 (vi)
Self
Tender Offers and Exchange Offers.If the Corporation or any subsidiary
of the Corporation
successfully completes a tender or exchange offer pursuant to a Schedule TO or
Registration Statement on Form S-4 for Common Stock (excluding any securities
convertible or exchangeable for Common Stock), where the cash and the value of
any other consideration included in the payment per share of Common Stock
exceeds the Current Market Price, the Conversion Rate in effect at 5:00 p.m.,
New York City time, on the date of expiration of the tender or exchange offer
(the "Expiration
Date")will be multiplied by a fraction:
  (A) the
numerator of which shall be equal to the sum of:
 
 a. the
aggregate cash and Fair Market Value on the Expiration Date of any other
consideration paid or payable for shares validly tendered or exchanged and not
withdrawn as of the Expiration Date; and
  b. the
product of the Current Market Price and the number of shares of Common Stock
outstanding immediately after the last time tenders or exchanges may be made
pursuant to such tender or exchange offer (the " Expiration
Time")on the Expiration Date; and
  (B) the
denominator of which shall be equal to the product of:
 
 1. the
Current Market Price; and
 
 2. the
number of shares of Common Stock outstanding immediately prior to the Expiration
Time on the Expiration Date.
  Any
adjustment made pursuant to this clause (vi) shall become effective immediately
after 5:00 p.m., New York City time, on the Expiration Date. In the event that
the Corporation or one of its subsidiaries is obligated to purchase shares of
Common Stock pursuant to any such tender offer or exchange offer, but the
Corporation or such subsidiary is permanently prevented by applicable law from
effecting any such purchases, or all such purchases are rescinded, then the
Conversion Rate shall be readjusted to be the Conversion Rate that would then be
in effect if such tender offer or exchange offer had not been made. Except as
set forth in the preceding sentence, if the application of this clause (vi) to
any tender offer or exchange offer would result in a decrease in the Conversion
Rate, no adjustment shall be made for such tender offer or exchange offer under
this clause (vi). If an adjustment to the Conversion Rate is required pursuant
to this clause (vi) during any settlement period in respect of shares of 12%
Convertible Preferred Stock that have been tendered for conversion, delivery of
the related conversion consideration will be delayed to the extent necessary in
order to complete the calculations provided for in this clause
(vi).
  (vii) In
cases where the Fair Market Value of assets (including cash), debt securities or
certain rights,
warrants or options to purchase securities of the Corporation as to which Section
12(a)(iv)(A) and Section 12(a)(v) apply, applicable to one share of Common
Stock, distributed to stockholders equals or exceeds the average of the Closing
Prices of the Common Stock over the five consecutive Trading Day period ending
on the Trading Day before the Ex-Date for such distribution, rather than being
entitled to an adjustment in the Conversion Rate, Holders of 12% Convertible
Preferred Stock shall be entitled to receive upon conversion, in addition to a
number of shares of Common Stock equal to the applicable conversion rate in
effect on the applicable Conversion Date, the kind and amount of assets
(including cash), debt securities or rights, warrants or options comprising the
distribution that such Holder would have received if such Holder had converted
its shares of 12% Convertible Preferred Stock immediately prior to the record
date for determining the holders of Common Stock entitled to receive the
distribution calculated by multiplying the kind and amount of assets (including
cash), debt securities or rights, warrants or options comprising the
distribution by the number of shares of Common Stock equal to the Conversion
Rate in effect on the applicable Conversion Date.
  15
 
 (viii)
Rights
Plans.To the extent that the Corporation has a rights plan in effect
with respect to the
Common Stock on any Conversion Date, upon conversion of any 12% Convertible
Preferred Stock, Holders shall receive, in addition to the Common Stock, the
rights under such rights plan, unless, prior to such Conversion Date, the rights
have separated from the Common Stock, in which case the Conversion Rate shall be
adjusted at the time of separation of such rights as if the Corporation made a
distribution to all holders of the Common Stock as described in
 Section
12(a)(iv), subject to readjustment in the event of the expiration, termination
or redemption of such rights.
  (b) Adjustment
for Tax Reasons.The Corporation may make such increases in the
Conversion Rate, in
addition to any other increases required by this Section 12, as the Board of
Directors deems it advisable to avoid or diminish any income tax to holders of
the Common Stock resulting from any dividend or distribution of the
Corporation's shares of Common Stock (or issuance of rights or warrants to
acquire shares of Common Stock) or from any event treated as such for income tax
purposes or for any other reasons; providedthat the same proportionate adjustment must be made to the Conversion
Rate.
  (c) Calculation
of Adjustments.(i) All adjustments to the Conversion Rate shall be
calculated to the nearest
1/10,000th of a share of Common Stock. No adjustment in the Conversion Rate
shall be required unless such adjustment would require an increase or decrease
of at least one percent therein; provided,that any adjustments which by reason of this Section 12(c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment; provided,
however,that with respect to adjustments to be made to the Conversion
Rate in connection with cash dividends paid by the Corporation, the Conversion
Rate shall be adjusted regardless of whether such aggregate adjustments amount
to one percent or more of the Conversion Rates no later than March 15 of each
calendar year; provided,
furtherthat on the Conversion Date adjustments to the Conversion Rate
shall be made with respect to any such adjustment carried forward and which has
not been taken into account before such date.
  (i) No
adjustment to the Conversion Rate shall be made if Holders may participate in
the transaction
that would otherwise give rise to an adjustment. In addition, the applicable
Conversion Rate shall not be adjusted:
 
 (A) upon
the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on the
Corporation's securities and the investment of additional optional amounts in
shares of Common Stock under any plan;
 
 (B) upon
the issuance of any shares of Common Stock or rights or warrants to purchase
those shares pursuant to any present or future employee, director or consultant
benefit plan or program of or assumed by the Corporation or any of its
subsidiaries;
 
 (C) 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
 
 (D) for a
change in the par value or no par value of the Common Stock.
 
 (d) Notice
of Adjustment.Whenever the Conversion Rates are to be adjusted, the
Corporation shall:
 
 (i)
compute such adjusted Conversion and prepare and transmit to the Transfer Agent
an Officer's Certificate setting forth such adjusted Conversion Rate, the method
of calculation thereof in reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based;
  (ii) as
soon as practicable following the occurrence of an event that requires an
adjustment to the Conversion Rate (or if the Corporation is not aware of such
occurrence, as soon as practicable after
becoming so aware), provide, or cause to be provided, a written notice to the
Holders of 12% Convertible Preferred Stock of the occurrence of such event;
and
  16
  (iii) as
soon as practicable following the determination of such adjusted Conversion
Rate,provide,
or cause to be provided, to the Holders of 12% Convertible Preferred Stock a
statement setting forth in reasonable detail the method by which the adjustment
to the Conversion Rate was determined and setting forth such adjusted Conversion
Rate.
  (e)Reorganization
Events.In the
event of:
  (i) any
consolidation or merger of the Corporation with or into another Person (other
than amerger or
consolidation in which the Corporation is the continuing corporation and in
which the Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other property of the
Corporation or another Person);
  (ii) any
sale, transfer, lease or conveyance to another Person of all or substantially
all of theproperty
and assets of the Corporation;
  (iii) any
reclassification of Common Stock into securities including securities other thanCommon
Stock; or
  (iv) any
statutory exchange of securities of the Corporation with another Person (other
than inconnection
with a merger or acquisition),
  (each, a
"Reorganization
Event"),each share of 12% Convertible Preferred Stock outstanding
immediately prior to such Reorganization Event shall, without the consent of
Holders of 12% Convertible Preferred Stock, become convertible into the kind of
securities, cash and other property (the "Exchange
Property")that such Holder would have been entitled to receive if such
Holder had converted its 12% Convertible Preferred Stock into Common Stock
immediately prior to such Reorganization Event. For purposes of the foregoing,
the type and amount of consideration that a Holder of 12% Convertible Preferred
Stock would have been entitled to receive as a holder of Common Stock in the
case of any Reorganization Event that causes the Common Stock to be converted
into the right to receive more than a single type of consideration determined
based in part upon any form of shareholder election will be deemed to be the
weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election.
  The above
provisions of this Section 12(e) shall similarly apply to successive
Reorganization Events and the provisions of Section 12 shall apply to any shares
of capital stock of the Corporation (or any successor) received by the holders
of Common Stock in any such Reorganization Event.
  The
Corporation (or any successor) shall, within 20 days of the occurrence of any
Reorganization Event, provide written notice to the Holders of such occurrence
of such event and of the kind and amount of the cash, securities or other
property that constitute the Exchange Property. Failure to deliver such notice
shall not affect the operation of this Section 12(e).
  (13)Replacement
Stock Certificates.If
physical certificates are issued, and any of the 12%Convertible
Preferred Stock certificates shall be mutilated, lost, stolen or destroyed, the
Corporation shall, at the expense of the Holder, issue, in exchange and in
substitution for and upon cancellation of the mutilated 12%Convertible
Preferred Stock certificate, or in lieu of and substitution for the 12%
Convertible Preferred Stockcertificate
lost, stolen or destroyed, a new 12% Convertible Preferred Stock certificate of
like tenor and representingan
equivalent amount of shares of 12% Convertible Preferred Stock, but only upon
receipt of evidence of such loss,theft or
destruction of such 12% Convertible Preferred Stock certificate and indemnity,
if requested, satisfactory tothe
Corporation and the Transfer Agent.
  17
  (14)Transfer
Agent, Registrar, and Conversion and Dividend Disbursing Agent.The duly
appointedTransfer
Agent, Registrar and Conversion and Dividend Disbursing Agent for the 12%
Convertible Preferred Stock shall be
American Stock Transfer and Trust Company. The Corporation may, in its sole
discretion, remove the Transfer Agent in accordance with the agreement between
the Corporation and the Transfer Agent; providedthat the Corporation 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 Corporation shall send notice thereof by
first-class mail, postage prepaid, to the Holders of the 12% Convertible
Preferred Stock.
  (15)
Miscellaneous. (a)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 this Certificate) with
postage prepaid, addressed: (i) if to the Corporation, to its office at 6500
North Mineral Drive, Suite 200, Coeur d'Alene, ID 83815, (Attention: General
Counsel) or to the Transfer Agent at its Corporate Trust Office, or other agent
of the Corporation designated as permitted by this Certificate, or (ii) if to
any Holder of the 12% Convertible Preferred Stock or holder of shares of Common
Stock, as the case may be, to such holder at the address of such holder as
listed in the stock record books of the Corporation (which may include the
records of any transfer agent for the 12% Convertible Preferred Stock or Common
Stock, as the case may be), or (iii) to such other address as the Corporation or
any such holder, as the case may be, shall have designated by notice similarly
given.
  (b) The
Corporation shall pay any and all stock transfer and documentary stamp taxes
that
maybe payable in respect of any issuance or delivery of shares of 12%
Convertible Preferred Stock or shares of Common Stock or other securities issued
on account of 12% Convertible Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Corporation 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 12% Convertible Preferred
Stock or Common Stock or other securities in a name other than that in which the
shares of 12% 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 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
Corporation the amount of any such tax or has established, to the satisfaction
of the Corporation, that such tax has been paid or is not payable.
  (c) The
Liquidation Preference and the Dividend Rate each shall be subject to equitable
adjustment whenever there shall occur a stock split, combination,
reclassification or other similar event involving the 12% Convertible Preferred
Stock. Such adjustments shall be reasonably determined in good faith by the
Board of Directors and submitted by the Board of Directors to the Transfer
Agent.
  HECLA
      MINING COMPANYBy:/s/
      Michael B.
      White
                        Michael B.
      White
                        General Counsel
      & Secretary
                        
                        ATTEST:
                          
                          By:/s/
      James A.
      Sabala
                        James
      A. Sabala
                        Senior Vice
      President & CFO
 February
10, 2009
  18
  State
      of Delaware
                        Secretary
      of State
                        Division
      of Corporations
                        Delivered
      12:08 PM 05/13/2009
                        FILED
      11:52 AM 05/13/2009
                        SRV
      090465651 - 4194766 FILE
 CERTIFICATE
OF DECREASE
  OF
  SHARES
DESIGNATED
  AS
  SeriesB
Cumulative Convertible Preferred Stock
  *****
  Hecla
Mining Company, a corporation organized and existing under the General
Corporation Law of the State of Delaware,
  DOES
HEREBY CERTIFY:
  That a
Certificate of the Designations, Preferences and Rights of Series B Cumulative
Convertible Preferred Stock was filed in said office of the Secretary of State
on August 14, 2006.
  That the
Board of Directors of said corporation at a meeting held on January 28, 2009
duly adopted a resolution authorizing and directing a decrease in the number of
shares designated as Series B Cumulative Convertible Preferred Stock of the
corporation, from 2,300,000 shares to 157,816 shares, in accordance with the
provisions of section 151 of The General Corporation Law of the State of
Delaware.
  IN
WITNESS WHEREOF, said Hecla Mining Company has caused this certificate to be
signed by Michael B. White, its General Counsel this 6th day of May,
2009.
  Hecla
Mining Company
 By: /s/
      Michael B. White
                        Michael
      B. White
                          General
      Counsel & Secretary