BE TRUE AND CORRECT IN ANY MATERIAL
RESPECT AS OF THE ISSUE DATE AS THOUGH MADE ON AND AS OF THE ISSUE DATE (EXCEPT
TO THE EXTENT (X) THAT ANY SUCH REPRESENTATION AND WARRANTY IS QUALIFIED AS TO
"MATERIALITY" OR "MATERIAL ADVERSE EFFECT", IN WHICH CASE SUCH REPRESENTATIONS
AND WARRANTIES SHALL FAIL TO BE TRUE AND CORRECT IN ALL RESPECTS AND (Y) ANY
SUCH REPRESENTATION AND WARRANTY EXPRESSLY RELATES TO AN EARLIER DATE, IN WHICH
CASE SUCH REPRESENTATION AND WARRANTY SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF SUCH EARLIER DATE), THEN (X) THE DIVIDEND RATES APPLICABLE FROM
TIME TO TIME PURSUANT TO THIS CERTIFICATE SHALL IN EACH CASE BE INCREASED BY ONE
PERCENT (1%) PER ANNUM AND (Y) THE MAXIMUM DIVIDEND RATE PAYABLE PRIOR TO THE
TENTH (10TH) ANNIVERSARY OF THE ISSUE DATE SHALL BE SEVENTEEN PERCENT (17%) PER
ANNUM.
(III)
IF (A) ANY CONDITION OR EVENT EXISTS AS OF THE ISSUE DATE THAT IS
DESCRIBED IN MORE THAN ONE OF CLAUSES (I) AND (II) ABOVE, OR (B) MORE THAN ONE
OF THE CONDITIONS OR EVENTS DESCRIBED IN CLAUSE (I) AND (II) EXIST AS OF THE
CLOSING DATE, THEN ONLY CLAUSE (I) SHALL BE DEEMED TO APPLY.
SECTION 3.
LIQUIDATION.
UPON ANY LIQUIDATION, DISSOLUTION OR
WINDING UP, OR ANY OTHER DISTRIBUTION OF THE ASSETS, OF THE CORPORATION (WHETHER
VOLUNTARY OR INVOLUNTARY), EACH HOLDER OF PERPETUAL PREFERRED STOCK SHALL BE
ENTITLED TO BE PAID, BEFORE ANY DISTRIBUTION OR PAYMENT IS MADE UPON ANY JUNIOR
SECURITIES, AN AMOUNT IN CASH EQUAL TO THE AGGREGATE STATED VALUE OF ALL SHARES
OF PERPETUAL PREFERRED STOCK HELD BY SUCH HOLDER (PLUS ALL ACCRUED AND UNPAID
DIVIDENDS THEREON UP TO BUT NOT INCLUDING THE DATE OF PAYMENT), AND THE HOLDERS
OF PERPETUAL PREFERRED STOCK SHALL NOT BE ENTITLED TO ANY FURTHER PAYMENT IN
RESPECT THEREOF.
IF UPON ANY SUCH LIQUIDATION, DISSOLUTION OR WINDING UP OF THE
4
CORPORATION THE CORPORATION'S ASSETS TO BE DISTRIBUTED AMONG THE HOLDERS OF THE
PERPETUAL PREFERRED STOCK AND ANY PARITY SECURITIES ARE INSUFFICIENT TO PERMIT
PAYMENT TO SUCH HOLDERS OF THE PERPETUAL PREFERRED STOCK OF THE AGGREGATE AMOUNT
WHICH THEY ARE ENTITLED TO BE PAID UNDER THIS SECTION 3 AND SUCH HOLDERS OF
PARITY SECURITIES OF THE AGGREGATE AMOUNT WHICH THEY ARE ENTITLED TO BE PAID IN
ACCORDANCE WITH THE TERMS OF SUCH PARITY SECURITIES, THEN THE ENTIRE ASSETS
AVAILABLE TO BE DISTRIBUTED TO THE CORPORATION'S STOCKHOLDERS SHALL BE
DISTRIBUTED PRO RATA AMONG THE HOLDERS OF THE PERPETUAL PREFERRED STOCK AND ANY
PARITY SECURITIES, IN ACCORDANCE WITH THE FULL RESPECTIVE PREFERENTIAL PAYMENTS
THAT WOULD BE PAYABLE ON SUCH SHARES OF PERPETUAL PREFERRED STOCK AND SUCH
SHARES OF PARITY SECURITIES IF ALL AMOUNTS PAYABLE THEREON WERE PAYABLE IN
FULL.
NEITHER THE CONSOLIDATION OR MERGER OF THE CORPORATION INTO OR WITH ANY
OTHER ENTITY OR ENTITIES (WHETHER OR NOT THE CORPORATION IS THE SURVIVING
ENTITY), NOR THE SALE OR TRANSFER BY THE CORPORATION OF ALL OR ANY PART OF ITS
ASSETS, NOR THE REDUCTION OF THE CAPITAL STOCK