-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, RiA50AiIwKuqMI0CORD3EdsgsMJzrywJDxFVb0MeGDutwvRsMV4cf0uKgRwvGthT sbEN9RmGa0XB1nAoPS/7dw== 0000101063-94-000038.txt : 19940816 0000101063-94-000038.hdr.sgml : 19940816 ACCESSION NUMBER: 0000101063-94-000038 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19940630 FILED AS OF DATE: 19940815 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIQUITA BRANDS INTERNATIONAL INC CENTRAL INDEX KEY: 0000101063 STANDARD INDUSTRIAL CLASSIFICATION: 2011 IRS NUMBER: 041923360 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-01550 FILM NUMBER: 94544066 BUSINESS ADDRESS: STREET 1: 250 E FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5137848011 FORMER COMPANY: FORMER CONFORMED NAME: UNITED BRANDS CO DATE OF NAME CHANGE: 19900403 10-Q 1 10-Q FORM 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the Quarterly Period Ended Commission File June 30, 1994 Number 1-1550 CHIQUITA BRANDS INTERNATIONAL, INC. Incorporated under the IRS Employer I.D. Laws of New Jersey No. 04- 1923360 250 East Fifth Street, Cincinnati, Ohio 45202 (513) 784-8011 Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and (2) has been subject to such filing requirements for the past 90 days. YES X NO As of August 1, 1994, there were 48,781,075 shares of Common Stock outstanding. Page 1 of 14 Pages CHIQUITA BRANDS INTERNATIONAL, INC. TABLE OF CONTENTS Page PART I - Financial Information Consolidated Statement of Income for the quarters and six months ended June 30, 1994 and 1993 . . . . . . . . 3 Consolidated Balance Sheet as of June 30, 1994, December 31, 1993 and June 30, 1993 . . . . . . . . . . . . . . . . . . . . . 4-5 Consolidated Statement of Cash Flow for the six months ended June 30, 1994 and 1993. . . . . . . . . . . . . . 6 Notes to Consolidated Financial Statements . . . . . . . . 7 Management's Analysis of Operations and Financial Condition . . . . . . . . . . . . . . . . . . 8-9 PART II - Other Information Item 1 - Legal Proceedings . . . . . . . . . . . . . . . . 10 Item 4 - Submission of Matters to a Vote of Security Holders . . . . . . . . . . . . . . . . 10 Item 5 - Other Information . . . . . . . . . . . . . . . . 11 Item 6 - Exhibits and Reports on Form 8-K. . . . . . . . . 11 Signature. . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Part I - Financial Information CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED STATEMENT OF INCOME (In thousands, except per share amounts) (Unaudited) Quarter Ended Six Months Ended June 30, June 30, 1994 1993 1994 1993 Net sales $652,910 $682,352 $1,322,078 $1,413,461 Operating expenses Cost of sales 469,519 535,555 954,614 1,082,616 Selling, general and administrative 86,409 78,457 162,888 168,769 Depreciation 26,849 26,355 53,260 49,749 582,777 640,367 1,170,762 1,301,134 Operating income 70,133 41,985 151,316 112,327 Interest income 5,566 5,891 10,727 12,291 Interest expense (40,940) (42,017) (84,398) (84,396) Other income, net 1,686 3,914 2,334 4,381 Income from continuing operations before income taxes 36,445 9,773 79,979 44,603 Income taxes (5,500) (2,100) (13,500) (9,400) Income from continuing operations 30,945 7,673 66,479 35,203 Discontinued operations -- -- -- -- Income before extraordinary item 30,945 7,673 66,479 35,203 Extraordinary loss from prepayment of debt -- -- (22,840) -- Net income $30,945 $ 7,673 $ 43,639 $35,203 Weighted average number of common shares outstanding (see Exhibit 11) 53,011 51,551 53,094 51,729 Earnings (loss) per common share: Primary - Continuing operations $ .54 $ .15 $ 1.19 $ .68 - Extraordinary loss -- -- (.43) -- - Net income $ .54 $ .15 $ .76 $ .68 Fully diluted - Continuing operations $ .51 $ .15 $ 1.13 $ .68 - Extraordinary loss -- -- (.39) -- - Net income $ .51 $ .15 $ .74 $ .68 Cash dividends declared per common share $ .05 $ .17 $ .10 $ .34 See Notes to Consolidated Financial Statements. CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED BALANCE SHEET (In thousands) (Unaudited) ASSETS June 30, December 31,June 30, 1994 1993 1993 Current assets Cash and equivalents $269,159 $151,226 $244,855 Trade receivables, less allowances of $11,076, $11,051 and $9,921, respectively 228,913 187,936 233,742 Other receivables, net 93,703 85,170 73,534 Inventories 287,670 307,073 319,318 Other current assets 29,135 39,054 37,174 Total current assets 908,580 770,459 908,623 Restricted cash 52,520 51,020 44,520 Net assets of discontinued operations 38,410 42,410 42,410 Property, plant and equipment, net 1,439,717 1,427,191 1,451,603 Investments and other assets 297,722 282,914 238,367 Intangibles, net 164,516 166,759 184,700 $ 2,901,465 $2,740,753$ 2,870,223 See Notes to Consolidated Financial Statements. CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED BALANCE SHEET (continued) (In thousands, except share amounts) (Unaudited) LIABILITIES AND SHAREHOLDERS' EQUITY June 30, December 31,June 30, 1994 1993 1993 Current liabilities Notes and loans payable $122,910 $112,796 $107,571 Long-term debt due within one year 83,863 79,411 84,657 Accounts payable 214,047 202,923 223,654 Accrued liabilities 106,083 108,536 139,042 Total current liabilities 526,903 503,666 554,924 Long-term debt of parent company 840,125 881,124 880,359 Long-term debt of subsidiaries 550,031 557,254 556,038 Accrued pension and other employee benefits 76,122 74,588 73,759 Other liabilities 128,754 122,123 113,958 Total liabilities 2,121,935 2,138,755 2,179,038 Shareholders' equity Preferred stock, Series A (2,875,000 shares outstanding) 138,369 -- -- Preference stock, Series C (648,310 shares outstanding) 52,270 52,270 52,270 Capital stock, $.33 par value (48,779,465, 48,510,353 and 48,137,780 shares outstanding, respectively) 16,260 16,170 16,046 Capital surplus 499,225 494,240 490,309 Retained earnings 73,406 39,318 132,560 Total shareholders' equity 779,530 601,998 691,185 $ 2,901,465 $2,740,753$ 2,870,223 See Notes to Consolidated Financial Statements. CHIQUITA BRANDS INTERNATIONAL, INC. CONSOLIDATED STATEMENT OF CASH FLOW (In thousands) (Unaudited) Six Months Ended June 30, 1994 1993 Cash provided (used) by: Operations Income from continuing operations $66,479 $35,203 Depreciation and amortization 56,503 53,330 Changes in current assets and liabilities Receivables (44,483) (43,812) Inventories 18,073 31,650 Accounts payable and accrued liabilities 8,472 4,590 Other current assets and liabilities 9,805 (2,700) Other (3,443) (7,045) Cash flow from operations 111,406 71,216 Investing Capital expenditures (66,977) (153,834) Restricted cash deposits (1,500) (44,520) Acquisitions and long-term investments (353) (16,306) Decrease in marketable securities -- 25,212 Proceeds from sale of ships and equipment -- 22,000 Other (2,602) (917) Cash flow from investing (71,432) (168,365) Financing Debt transactions Issuances of long-term debt 212,662 99,531 Repayments of long-term debt (284,564) (78,802) Increase (decrease) in notes and loans payable 11,968 (31,054) Stock transactions Issuance of preferred stock 138,369 -- Dividends (7,419) (18,511) Net issuances (repurchases) of capital stock 2,943 (394) Cash flow from financing 73,959 (29,230) Discontinued operations 4,000 (16,735) Increase (decrease) in cash and equivalents 117,933 (143,114) Balance at beginning of period 151,226 387,969 Balance at end of period $269,159 $244,855 See Notes to Consolidated Financial Statements. CHIQUITA BRANDS INTERNATIONAL, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited) Interim results are subject to significant seasonal variations and are not necessarily indicative of the results of operations for a full fiscal year. In the opinion of management, all adjustments (which include only normal recurring adjustments) necessary for a fair statement of the results of the interim periods shown have been made. See Notes to Consolidated Financial Statements included in the Company's Annual Report on Form 10-K for the year ended December 31, 1993 for additional information relating to the Company's financial statements. Inventories consisted of the following (in thousands): June 30, December 31, June 30, 1994 1993 1993 Bananas and other fresh produce $ 43,374 $42,918$ 44,447 Other food products 40,296 56,043 58,613 Growing crops 120,002 117,839 112,539 Materials and supplies 71,077 75,206 87,737 Other 12,921 15,067 15,982 $287,670 $307,073 $319,318 In February 1994, the Company completed the sale of $175 million principal amount of 9-1/8% Senior Notes due 2004 and 2,875,000 shares of $2.875 Non-Voting Cumulative Preferred Stock, Series A. The net proceeds from the offerings totaled approximately $310 million. In March, most of these proceeds were used to prepay all of the outstanding principal amount of the Company's 11-7/8% Subordinated Debentures ($125 million), 10-1/4% Subordinated Debentures ($42 million), 9-1/8% Subordinated Debentures ($18 million) and a portion ($45 million principal amount) of its 10-1/2% Subordinated Debentures. These prepayments resulted in an extraordinary loss of $22.8 million, consisting primarily of write-offs of unamortized discounts and $5 million of call premiums. In accordance with its long-standing policy to periodically hedge transactions denominated in foreign currencies, at June 30, 1994, the Company had approximately $180 million of foreign exchange forward contracts with an average exchange rate of 1.71 Deutsche mark for each U.S. dollar to ensure conversion rates on a like amount of foreign sales commitments for the second half of 1994. The fair value of these contracts, based on quoted market prices, was approximately $12 million at June 30, 1994. CHIQUITA BRANDS INTERNATIONAL, INC. MANAGEMENT'S ANALYSIS OF OPERATIONS AND FINANCIAL CONDITION OPERATIONS Net sales for the six months ended June 30, 1994 declined $91 million (6%) from the prior year level primarily as a result of reductions in volume. The effect on revenue of lower volume was partially offset by the effect on revenue (4%) of a higher average worldwide banana price. The increases in operating earnings for the quarter and first half were generated by the Company's banana division. The benefit on operating income of a higher average worldwide price for bananas was in part offset by the impact of lower banana volumes that followed the European Union's imposition of quota restrictions in July 1993. Total operating expenses for the quarter and first half reflect reductions associated with lower banana volumes. However, selling, general and administrative expenses for the quarter are higher due primarily to the timing of first half advertising expenses, while depreciation costs for the quarter and six months are higher as a result of ship deliveries during 1993 and 1994 which replaced rented capacity. Interest expense for the quarter decreased as a result of the Company's recent refinancings (see "Notes to Consolidated Financial Statements"). These refinancings will also result in reduced interest expense in future periods. The effective tax rate is affected by the level and mix of income between various domestic and foreign jurisdictions in which the Company operates. FINANCIAL CONDITION The increase in cash of $118 million during the first half of 1994 resulted primarily from improved operating cash flow. Proceeds from new financings were used primarily to retire higher cost debt. First half 1994 capital expenditures include $38 million for delivery of a new ship and related equipment ordered in prior years, of which $31 million was financed. In July 1994, Chiquita took delivery of the final ship under its multi-year investment spending program at a cost of $30 million, of which $25 million was financed. DISCONTINUED OPERATIONS In February 1994, the Company's Meat Division sold its specialty meat operations for approximately $50 million in cash. The sale proceeds were used primarily to reduce short-term borrowings under the Meat Division's credit facility. In March 1994, the Meat Division made a scheduled payment of $4 million on its secured debt held by Chiquita. In April 1994, $12.5 million of the remaining $12.7 million of this secured debt was retired in exchange for a new preferred equity interest in the Meat Division. During the first half of 1994, the Meat Division continued to produce improved operating profits (which are not included in Chiquita's consolidated results of operations) on approximately $740 million in net sales. The Company is continuing to pursue, and expects to complete, the divestiture of the remaining Meat Division operations by the end of 1994. OTHER As previously disclosed, on July 1, 1993, the European Union ("EU") implemented a new quota effectively restricting the volume of Latin American bananas imported into the EU, which had the effect of decreasing the Company's market share in Europe. The new EU regulation and its underlying principles were ruled illegal under the General Agreement on Tariffs and Trade ("GATT") by GATT dispute settlement panels in May 1993 and January 1994. However, in late March, the EU announced it had reached a settlement agreement ("Framework Agreement") with four of the five Latin American banana producing countries that had filed the GATT actions (Costa Rica, Colombia, Nicaragua and Venezuela). In exchange for the withdrawal by these countries of their GATT challenges, the Framework Agreement will (a) give these countries each a guaranteed percentage of the EU quota and the right to establish an export licensing system, (b) slightly increase the EU import quota and (c) slightly lower import tariffs. The Framework Agreement is opposed by numerous EU member states and Latin American countries, and implementing regulations have not yet been enacted. However, the EU's administrative commission is seeking to implement it later this year as part of a larger package of GATT implementation regulations. If the Framework Agreement and related regulations are implemented, it could increase the Company's costs to export Latin American bananas to the EU. These increases could take the form of (a) export taxes and other export license procurement fees in the Latin American countries which are parties to the Framework Agreement, and (b) increased costs that could result from inefficient realignment of production and transportation logistics to meet the export quota and license restrictions. Other challenges to the quota and Framework Agreement continue. In June 1994, the Advocate-General of the European Court of Justice ("ECJ") issued an opinion in a lawsuit filed by Germany, the Netherlands and Belgium that strongly criticized the EU quota and import licensing system and its impact on suppliers of Latin American bananas. Nevertheless, the Advocate-General declined to recommend overturning that system in light of the broad authority granted by the EU to the administrative commission which developed the system. A final ECJ opinion has not yet been issued. In July, Germany commenced a second ECJ action challenging the Framework Agreement. The Company continues to address each new development in the EU regulatory environment by adapting its operations to optimize results while retaining flexibility in the evolving restrictive regulatory environment. Part II - Other Information Item 1 - Legal Proceedings Reference is made to Part I, Item 1 - "Business-Discontinued Operations-Regulation" in the Company's 1993 Form 10-K and the internal investigation and U.S. Environmental Protection Agency and Department of Justice investigations concerning a wastewater treatment facility at one of the Meat Division's plants. John Morrell & Co. is now operating the wastewater facility under a new five year permit. Reference is made to Part I, Item 3 - "Legal Proceedings" in the Company's 1993 Form 10-K and to Part II, Item 1 - "Legal Proceedings" in the Company's Form 10-Q for the quarter ended March 31, 1994 concerning cases pending in Texas against manufacturers and banana industry users of DBCP. In July 1994, the first two suits referred to in the Form 10-Q (Delgado and Carcamo) were consolidated under the style and cause number as Franklin Rodriguez Delgado, et al. v. Shell Oil Company, et al., Del Monte Fresh Produce, N.A. v. Dead Sea Bromine Co. Ltd., et al, Civil Action No. H-94-1337 (U.S. District Court, Southern District of Texas, Houston Division). Item 4 - Submission of Matters to a Vote of Security Holders The matters indicated below were voted upon at the Company's Annual Meeting of Shareholders held on May 11, 1994. Proxies were solicited pursuant to Regulation 14 under the Securities Exchange Act of 1934. Proxies representing 8,197,293 shares were not voted. (a)Election of Nine Directors Votes Name For Withheld Carl H. Lindner 43,250,437 435,137 Hugh F. Culverhouse, Sr. 42,227,901 1,457,673 Keith E. Lindner 43,243,832 441,742 S. Craig Lindner 43,242,929 442,645 Fred J. Runk 43,256,929 428,645 Jean Head Sisco 43,253,967 431,607 William W. Verity 43,236,919 448,655 Oliver W. Waddell 43,253,918 431,656 Ronald F. Walker 42,235,209 1,450,365 (b) Adoption of Second Restated Certificate of Incorporation which, among other things, increased the Company's number of authorized shares of capital stock from 100,000,000 shares to150,000,000 shares. The votes were: For - 37,121,024; Against - 1,310,974; Abstain - 154,750; Broker Non-votes - 5,098,826. (c) Amendments to the Company's 1986 Stock Option and Incentive Plan. The votes were: For -31,705,860; Against - 6,680,478; Abstain - 186,270; Broker Non-votes - 5,112,966. Item 5 - Other Information Reference is made to Part I, Item I - "Sourcing" in the Company's 1993 Form 10-K and the discussion of the individual supplier in the Philippines which provided approximately 10% of the bananas sold by Chiquita in 1993 and substantially all the bananas marketed by the Company in the Far and Middle East. In July 1994, this supplier ceased the supply of bananas to the Company. The Company has secured alternate Latin American sources of bananas to continue to supply its core customers in Japan and the Middle East and has otherwise reduced the volume of bananas being sold in these markets while it evaluates and pursues additional alternatives. The Company does not expect this development to have a material impact on the Company. Item 6 - Exhibits and Reports on Form 8-K Page Numbers (a) Exhibit 3(a) - The Company's Second Restated Certificate of Incorporation. . . . . . . . . . ** Exhibit 10(c) - 1986 Stock Option and Incentive Plan, as amended . . . . . . . . . . . . . . . . . . . . . . . ** Exhibit 11 - Computation of Earnings Per Common Share. . 13-14 Exhibit 99(c) - First Supplemental Indenture between the Company and The Fifth Third Bank, as Trustee, dated as of June 15, 1994 which amends the definition of "Permitted Indebtedness" relating to the Company's 9-1/8% Senior Notes due 2004 . . . . . . . . . . . . . . ** ** Copy omitted from this Quarterly Report on Form 10-Q. Copy included in report filed electronically with the Securities and Exchange Commission. (b) There were no reports on Form 8-K filed by the Company during the quarter ended June 30, 1994. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ William A. Tsacalis William A. Tsacalis Vice President and Controller (Chief Accounting Officer) August 15, 1994 EX-3.A 2 SECOND RESTATED CERTIFICATE OF INCORPORATION OF CHIQUITA BRANDS INTERNATIONAL, INC. CHIQUITA BRANDS INTERNATIONAL, INC., a corporation organized and existing under the laws of the State of New Jersey, amends, restates and integrates its Certificate of Incorporation to read in full as herein set forth. SECTION I The name of the Corporation is: CHIQUITA BRANDS INTERNATIONAL, INC. SECTION II The location of its registered office in the State of New Jersey is 820 Bear Tavern Road, West Trenton, County of Mercer, New Jersey 08628, and the name of the registered agent therein and in charge thereof upon whom process against the Corporation may be served is The Corporation Trust Company. SECTION III The purposes for which the Corporation is organized are to engage in any activity within the purposes for which corporations now or at any time hereafter may be organized under the New Jersey Business Corporation Act and under all amendments and supplements thereto, or any act enacted to take the place thereof. SECTION IV The aggregate number of shares which the Corporation is authorized to issue is 164,000,000 shares divided into: (i) 150,000,000 shares of Capital Stock, par value $.33 per share ("Capital Stock"), (ii) 4,000,000 shares of Cumulative Preference Stock, issuable in series, without nominal or par value ("Series Preference Stock"), and (iii) 10,000,000 shares of Non-Voting Cumulative Preferred Stock, issuable in series, par value $1 per share ("Non-Voting Preferred Stock"). The designations, preferences, rights and restrictions, to the extent that the same have been determined, and the manner of determining other designations, preferences, rights and restrictions of each series of Series Preference Stock and Non-Voting Preferred Stock are set forth in this Section IV. SUBSECTION A. PROVISIONS APPLICABLE TO ALL SERIES OF SERIES PREFERENCE STOCK (a) Issuance in Series. Shares of Series Preference Stock may be issued from time to time in one or more series. The shares of all series shall be without par value. The terms of Series C Preference Stock shall be as specified herein and in Subsection C of this Section. The preferences and relative, participating, optional and other special rights of each subsequent series and the qualifications, limitations or restrictions thereof if any, may differ from those of any and all other series already outstanding; the terms of each subsequent series shall be as specified in this Subsection A and in an amendment or amendments hereof (including any amendment made by action of the Board of Directors without shareholder approval) and the Board of Directors of the Corporation is hereby expressly granted authority to fix, by resolution or resolutions adopted prior to the issuance of any shares of a particular subsequent series of Series Preference Stock, the number of authorized shares of any such series and the designations, preferences and relative, participating, optional and other special rights, or the qualifications, limitations or restrictions thereof, of such series, including but without limiting the generality of the foregoing, the following: (i) The rate and times at which, and the terms and conditions in which, dividends on the Series Preference Stock of such series shall be paid; (ii) The rights, if any, of holders of Series Preference Stock of such series to convert the same into, or exchange the same for, other classes of stock of the Corporation and the terms and conditions of such conversion or exchange; (iii) The redemption price or prices and the time at which, and the terms and conditions on which, Series Preference Stock of such series may be redeemed; (iv) The rights of the holders of Series Preference Stock of such series upon the voluntary or involuntary liquidation, distribution or sale of assets, dissolution or winding up of the Corporation; (v) The voting power, if any, of the Series Preference Stock of such series; and (vi) The terms of the sinking fund or redemption or purchase account, if any, to be provided for the Series Preference Stock of such series. (b) Equal Rank. All shares of each series shall be identical in all respects, and all shares of Series Preference Stock of all series shall be of equal rank in respect of the preference as to dividends and to payments upon the liquidation, distribution or sale of assets, dissolution and winding up of the Corporation. The rights of the Capital Stock of the Corporation shall be subject to the preferences and relative, participating, optional and other special rights of the Series Preference Stock of each series as fixed herein and from time to time by the Board of Directors as aforesaid. (c) Dividends On All Series. If dividends on the Series Preference Stock of any series are not paid in full or declared in full and sums set apart for the payment thereof, then no dividends shall be declared and paid on any such stock unless declared and paid ratably on all shares of each series of the Series Preference Stock then outstanding, including dividends accrued or in arrears, if any, in proportion to the respective amounts that would be payable per share if all such dividends were declared and paid in full. The term "dividends accrued or in arrears" whenever used herein with reference to the Series Preference Stock shall be deemed to mean an amount which shall be equal to dividends thereon at the annual dividend rates per share for the respective series from the date or dates on which such dividends commence to accrue to the end of the then current quarterly dividend period for such stock (or, in the case of redemption, to the date of redemption), less the amount of all dividends paid upon such stock. If upon any liquidation, dissolution or winding up of the Corporation the assets distributable among the holders of any series of Series Preference Stock shall be insufficient to permit the payment in full to the holders of all series of the Series Preference Stock, of all preferential amounts payable to all such holders, then the entire assets of the Corporation thus distributable shall be distributed ratably among the holders of all series of the Series Preference Stock in proportion to the respective amounts that would be payable per share if such assets were sufficient to permit payment in full. (d) Special Vote. While any Series Preference Stock is outstanding the Corporation shall not, without the affirmative consent (given in writing or at a meeting duly called for that purpose) of the holders of at least two-thirds (2/3rds) of the aggregate number of shares of Series Preference Stock then outstanding, (1) authorize or issue shares of any class or series of stock having any preference or priority as to dividends or upon liquidation (hereinafter in this subparagraph (d) referred to as "Senior Stock") over the Series Preference Stock; (2) reclassify any shares of stock of the Corporation into shares of Senior Stock; (3) issue any security exchangeable for, convertible into, or evidencing the right to purchase any shares of Senior Stock; (4) be a party to any merger or consolidation unless the surviving or resulting corporation will have after such merger or consolidation no stock either authorized or outstanding ranking prior as to dividends or upon liquidation to the Series Preference Stock or to the stock of the surviving or resulting corporation issued in exchange therefor (except such prior ranking stock of the Corporation as may have been authorized or outstanding immediately preceding such merger or consolidation or such stock of the surviving or resulting corporation as may be issued in exchange therefor); or (5) amend, alter or repeal the Certificate of Incorporation of the Corporation to alter or change the preferences, rights or powers of the Series Preference Stock so as to affect such stock adversely. SUBSECTION B. SPECIAL PROVISIONS APPLICABLE TO ALL SERIES OF NON-VOTING PREFERRED STOCK Shares of Non-Voting Preferred Stock may be issued from time to time in one or more series, with the Board of Directors of the Corporation determining all terms, designations, preferences, rights and restrictions of each series without further action by the shareholders (including, without limitation, the voting powers thereof, if any; provided, however, that no series of Non-Voting Preferred Stock shall have the right to vote unconditionally in the election of Directors). SUBSECTION C. NO PRE-EMPTIVE RIGHTS No shareholder of the Corporation, by reason of his holding shares of any class of the capital stock of the Corporation, shall have any pre-emptive or preferential right to subscribe for or purchase any shares of (1) any class whatsoever which the Corporation may hereafter issue or sell, or (2) any obligations or securities which the Corporation may hereafter issue or sell, convertible into or exchangeable for or exchanged for, any shares of the Corporation of any class, or (3) any warrants or options which the Corporation may hereafter issue or sell which shall confer upon the holder or owner thereof the right to subscribe for or purchase from the Corporation any of its shares of any class. SUBSECTION D. SPECIAL PROVISIONS APPLICABLE TO SERIES A PREFERRED STOCK There is hereby established Series A Preferred Stock which shall be designated "$2.875 Non-Voting Cumulative Preferred Stock, Series A" $1.00 par value ("Series A Preferred Stock") and shall consist of Two Million, Eight Hundred Seventy-Five Thousand (2,875,000) shares, and no more. The relative, participating, optional and other special rights and the qualifications, limitations and restrictions of the Series A Preferred Stock shall be as follows: (a) Dividends. (i) The holders of outstanding shares of the Series A Preferred Stock shall be entitled to receive (subject to the rights of holders of shares of Mandatorily Exchangeable Cumulative Preference Stock, Series C, or any series of Non-Voting Cumulative Preferred Stock or Series Preference Stock and/or any other class or series of preferred or preference stock which the Corporation may in the future issue which ranks prior to or on a parity with the Series A Preferred Stock as to dividends), when, as and if declared by the Board of Directors out of funds legally available therefor, cumulative preferential cash dividends at the per share rate of $.71875 per quarter and no more ("Preferential Dividends"), payable on the seventh (7th) day of March, June, September and December of each year (each such date being hereinafter referred to as a "Preferential Dividend Payment Date") commencing June 7, 1994; provided, however, that the Preferential Dividend payable on June 7, 1994 (the "Initial Preferential Dividend") with respect to any share of Series A Preferred Stock outstanding on the record date for the Initial Preferential Dividend shall be computed in accordance with Subsection D(a)(iv). If June 7, 1994 or any other Preferential Dividend Payment Date shall not be a business day, then the Preferential Dividend Payment Date shall be on the next succeeding business day. Each such dividend will be payable to holders of record as they appear on the stock books of the Corporation on such record date, not less than 10 nor more than 60 days preceding the Preferential Dividend Payment Date, as shall be fixed by the Board of Directors. Dividends on the Series A Preferred Stock shall accrue from the date of issuance of the Series A Preferred Stock, and dividends accrued as of each Preferential Dividend Payment Date shall accumulate to the extent not paid on such date. Accumulated unpaid dividends shall not bear interest. All payments of Preferential Dividends to holders of Series A Preferred Stock shall be rounded up to the nearest whole cent. (ii) So long as any shares of Series A Preferred Stock are outstanding: (A) no dividend (other than a dividend or distribution paid in shares of, or warrants or rights to subscribe for or purchase shares of, Capital Stock or any other stock of the Corporation ranking junior to the Series A Preferred Stock as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other distribution declared or made upon the Capital Stock or upon any other stock of the Corporation ranking junior to or (except as provided in the following sentence) on a parity with the Series A Preferred Stock as to dividends, (B) nor shall any Capital Stock nor any other stock of the Corporation ranking junior to or on a parity with the Series A Preferred Stock as to dividends be redeemed, purchased or otherwise acquired 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 (except by conversion into or exchange for stock of the Corporation ranking junior to the Series A Preferred Stock as to dividends and upon liquidation), (C) nor shall the Corporation purchase or otherwise acquire (except pursuant to a purchase or exchange offer made on the same terms to all holders of shares of Series A Preferred Stock), or convert in part, but not in whole, into shares of Capital Stock at the option of the Corporation pursuant to Subsection D(c)(ii) outstanding shares of Series A Preferred Stock, unless, in each case, the full Preferential Dividends, if any, accumulated on all outstanding shares of the Series A Preferred Stock through the most recent Preferential Dividend Payment Date shall have been paid or deposited for payment or contemporaneously are declared and paid or deposited for payment. When dividends have not been paid in full upon the shares of Series A Preferred Stock, all dividends and other distributions declared upon the Series A Preferred Stock and any other shares of the Corporation ranking on a parity as to dividends and such other distributions with the shares of Series A Preferred Stock shall be declared pro rata so that the amount of dividends and other distributions declared per share on the Series A Preferred Stock and such other shares shall in all cases bear to each other the same ratio that accumulated unpaid dividends per share on the shares of Series A Preferred Stock and such other shares bear to each other. Holders of the shares of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided. (iii) Any dividend payment made on shares of Series A Preferred Stock shall first be credited against the earliest accumulated unpaid dividend due with respect to shares of Series A Preferred Stock. (iv) Any dividends payable for any period greater or less than a full quarterly dividend period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. (b) Liquidation. (i) Upon any dissolution, liquidation or winding up of the affairs of the Corporation, whether voluntary or involuntary (collectively, a "Liquidation"), the holders of shares of Series A Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution to shareholders, after payment of all debts and other liabilities of the Corporation and all liquidation preferences of holders of shares of any class or series of preferred or preference stock which the Corporation may in the future issue which ranks prior to the Series A Preferred Stock with respect to liquidation rights, but before any distribution or payment is made to holders of Capital Stock of the Corporation or on any other shares of the Corporation ranking junior to the shares of Series A Preferred Stock upon liquidation, liquidating distributions in the amount of $50 per share, plus an amount equal to all accumulated unpaid Preferential Dividends thereon to the date of Liquidation, and no more. If upon any Liquidation the amounts payable with respect to the Series A Preferred Stock and any other shares of the Corporation ranking as to any such distribution on a parity with the Series A Preferred Stock are not paid in full, the holders of shares of Series A Preferred Stock and of such other shares will share ratably in any such distribution of assets of the Corporation in proportion to the full respective distributable amounts to which they are entitled. After payment of the full amount of the liquidating distribution to which they are entitled, the holders of shares of Series A Preferred Stock will not be entitled to any further participation in any distribution or payments by the Corporation. (ii) Neither the merger nor consolidation of the Corporation into or with any other corporation or other entity, nor the merger or consolidation of any other corporation or other entity into or with the Corporation, nor a sale, transfer or lease of all or any part of the assets of the Corporation for cash, securities or other property, shall be deemed to be a Liquidation for purposes of this Subsection D(b). (c) Conversions. (i) Automatic Conversion Upon the Occurrence of Certain Events. Immediately prior to the effectiveness of a merger or consolidation of the Corporation that results in the conversion or exchange of the Capital Stock into or for, or that results in the holders of Capital Stock obtaining the right to receive, cash, securities or other assets, whether of the Corporation or of any other person or entity (any such merger or consolidation is referred to herein as a "Merger or Consolidation"), other than a Merger or Consolidation in which the Series A Preferred Stock remains outstanding and holders of Series A Preferred Stock obtain the right to receive upon conversion of their shares into Capital Stock or any other security the same cash, securities or other assets that they would have received with respect to the maximum number of shares of Capital Stock which such holders would have received (other than in payment of accumulated unpaid dividends) upon conversion of their shares of Series A Preferred Stock (at the option of the Corporation pursuant to clause (ii) of this Subsection D(c) or at the option of the holder pursuant to clause (iii) of this Subsection D(c), whichever is greater) immediately prior to the effectiveness of the Merger or Consolidation, each outstanding share of Series A Preferred Stock shall automatically convert into the maximum number of shares of Capital Stock which such holders would have received (other than in payment of accumulated unpaid dividends) upon conversion of their shares of Series A Preferred Stock (at the option of the Corporation pursuant to clause (ii) of this Subsection D(c) or at the option of the holder pursuant to clause (iii) of this Subsection D(c), whichever is greater), plus the right to receive an amount of cash equal to the accumulated unpaid dividends on such share of Series A Preferred Stock to and including the Settlement Date (as defined in Subsection D(c)(viii)). (ii) Conversion at the Option of the Corporation. (A) At any time and from time to time on and after February 15, 1997 and prior to February 15, 2001, and upon notice given as provided herein, the Corporation may convert, in whole or in part, the outstanding shares of Series A Preferred Stock; provided, however, that the Corporation may exercise its right to convert only if the Market Price (as defined in Subsection D(c)(viii)) of the Capital Stock for 20 Trading Dates (as defined in Subsection D(c)(viii)) within any period of 30 consecutive Trading Dates, including the last Trading Date of such 30 consecutive Trading Date period (the "Measuring Date"), shall have exceeded $24.70 per share, subject to adjustment as provided below (the "Strike Price"). On the date fixed for conversion, each outstanding share of Series A Preferred Stock to be converted pursuant to this Subsection D(c)(ii)(A) shall convert into that number of shares of Capital Stock as shall be determined in accordance with the Conversion Rate (as defined in Subsection D(c)(iv)) as in effect on the date of conversion, plus the right to receive an amount of cash equal to the accumulated unpaid dividends on such share of Series A Preferred Stock to and including the Settlement Date. The Strike Price shall be proportionately adjusted when, as and if the Conversion Rate shall be adjusted pursuant to Subsection D(c)(iv). (B) At any time and from time to time on and after February 15, 2001, and upon notice given as provided herein, the Corporation may convert, in whole or in part, the outstanding shares of Series A Preferred Stock. On the date fixed for conversion, each outstanding share of Series A Preferred Stock to be converted pursuant to this Subsection D(c)(ii)(B) shall convert into: (1) the lesser of (x) that number of shares of Capital Stock as shall equal $50 divided by the Current Market Price (as defined in Subsection D(c)(viii)) per share of Capital Stock on the date of conversion, or (y) 10 shares of Capital Stock, subject to adjustment as provided below (the "Maximum Conversion Rate"); plus (2) the right to receive an amount of cash equal to the accumulated unpaid dividends on such share of Series A Preferred Stock to and including the Settlement Date; plus (3) the right to receive an amount of cash equal to dividends accrued since the immediately preceding Preferential Dividend Payment Date, calculated in accordance with Subsection D(a)(iv); provided, however, that no amount shall be due and payable pursuant to this clause (3) if the conversion date follows a record date for the payment of a Preferential Dividend and precedes the next succeeding Preferential Dividend Payment Date. The Maximum Conversion Rate shall be proportionately adjusted when, as and if the Conversion Rate shall be adjusted pursuant to Subsection D(c)(iv). (iii) Conversion at the Option of the Holder. At any time and from time to time after the 60th day following the final closing of the initial public offering of Series A Preferred Stock, each holder of Series A Preferred Stock shall have the right to convert, in whole or in part, the outstanding shares of Series A Preferred Stock; provided, however, that if the shares of Series A Preferred Stock to be converted have been earlier called for conversion at the option of the Corporation, the right of the holder to convert such shares will terminate as of 5:00 P.M., New York City time, on the business day immediately preceding the date fixed for such conversion. Each outstanding share of Series A Preferred Stock to be converted at the option of the holder shall convert into that number of shares of Capital Stock as shall be determined in accordance with the Conversion Rate in effect on the Settlement Date, plus the right to receive an amount of cash equal to the accumulated unpaid dividends on such share of Series A Preferred Stock to be converted to and including the Settlement Date. In order to convert shares of Series A Preferred Stock into Capital Stock the holder thereof shall surrender, at the office in the United States designated by the Corporation in writing from time to time for registration of transfers and conversion, the certificate or certificates therefor, duly endorsed to the Corporation or in blank, and give written notice to the Corporation at said office that such holder elects to convert such shares and shall state in writing therein the name or names (with addresses) in which such holder wishes the certificate or certificates for Capital Stock to be issued. Shares of Series A Preferred Stock surrendered for conversion after the close of business on a record date for payment of Preferential Dividends and before 9:00 A.M., New York time, on the next succeeding Preferential Dividend Payment Date must be accompanied by payment of an amount equal to the Preferential Dividend thereon which is to be paid on such Preferential Dividend Payment Date. Shares of Series A Preferred Stock shall be deemed to have been converted on the date of the surrender of such certificate or certificates for shares for conversion as provided above, and the person or persons entitled to receive the Capital Stock issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Capital Stock on such date. As soon as practicable on or after the date of conversion as aforesaid, the Corporation will issue and deliver a certificate or certificates for the number of full shares of Capital Stock issuable upon such conversion, together with cash for any fraction of a share, as provided in Subsection D(c)(vi), to the person or persons entitled to receive the same. (iv) Conversion Rate; Adjustments. The Conversion Rate to be used to determine the number of shares of Capital Stock to be delivered on the conversion of the Series A Preferred Stock into shares of Capital Stock pursuant to Subsections D(c)(i), (ii) and (iii) shall be initially 2.6316 shares of Capital Stock for each share of Series A Preferred Stock; provided, however, that such Conversion Rate shall be subject to adjustment from time to time as provided below in this Subsection D(c)(iv). All adjustments to the Conversion Rate shall be calculated in 1/100ths of a share of Capital Stock. No adjustment of less than one percent (1%) of the Conversion Rate shall be required; however, any such adjustment not made due to such limitation shall be carried forward and shall be taken into account in any subsequent adjustment. Such rate in effect at any time is herein called the "Conversion Rate." (A) If the Corporation shall: (1) pay a dividend or make a distribution with respect to the Capital Stock in shares of Capital Stock (other than a dividend or distribution which is also paid to holders of Series A Preferred Stock and in which such holders shall receive, with respect to each share of Series A Preferred Stock, the same number of shares of Capital Stock as shall be distributed with respect to the maximum number of shares of Capital Stock into which such share of Preferred Stock shall then be convertible at the option of the Corporation pursuant to Subsection D(c)(ii) or at the option of the holder pursuant to Subsection D(c)(iii), whichever is greater), (2) subdivide or split its outstanding shares of Capital Stock, (3) combine its outstanding shares of Capital Stock into a smaller number of shares, or (4) issue by reclassification of its shares of Capital Stock any shares of Capital Stock of the Corporation,then, in any such event, the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the date of such event by a fraction, of which the numerator shall be the number of outstanding shares of Capital Stock immediately following such event, and of which the denominator shall be the number of outstanding shares of Capital Stock immediately prior to such event. Such adjustment shall become effective at the opening of business on the business day next following the record date for determination of shareholders entitled to receive such dividend or distribution in the case of a dividend or distribution and shall become effective immediately after the effective date in case of a subdivision, split, combination, or reclassification. (B) If the Corporation shall pay a dividend or make a distribution to all holders of its Capital Stock of evidence of its indebtedness or other assets (including securities of the Corporation but excluding any regular quarterly dividends payable solely in cash out of funds legally available therefor at a rate fixed from time to time by the Board of Directors or distributions and dividends referred to in clause (A) above), or shall distribute to all holders of its Capital Stock rights or warrants to subscribe for or purchase securities of the Corporation or any of its subsidiaries (in each case other than a dividend or distribution which is also paid or made to holders of Series A Preferred Stock in which such holders shall receive, with respect to each share of Series A Preferred Stock, the same evidence of indebtedness or other assets, or the same rights or warrants, as shall be paid or distributed with respect to the maximum number of shares of Capital Stock into which each share of Preferred Stock shall then be convertible at the option of the Corporation pursuant to Subsection D(c)(ii) or at the option of the holder pursuant to Subsection D(c)(iii), whichever is greater), then in each such case the Conversion Rate shall be adjusted by multiplying the Conversion Rate in effect immediately prior to the date of such distribution by a fraction, of which the numerator shall be the Current Market Price per share of Capital Stock on the record date mentioned below, and of which the denominator shall be such Current Market Price per share of Capital Stock less the fair market value (as determined by the Board of Directors of the Corporation, whose determination shall be conclusive) as of such record date of the portion of the assets or evidences of indebtedness so distributed, or of such subscription rights or warrants, applicable to one share of Capital Stock. Such adjustment shall become effective on the opening of business on the business day next following the record date for the determination of shareholders entitled to receive such distribution. (C) Anything in this Subsection D(c)(iv) notwithstanding, the Board of Directors shall be entitled to make such upward adjustments in the Conversion Rate, in addition to those required by this Subsection D(c)(iv), (1) as the Board of Directors in its discretion shall determine to be advisable, in order that any stock dividends, subdivision of shares, distribution of rights to purchase stock or securities, or a distribution of securities convertible into or exchangeable for stock (or any transaction which could be treated as any of the foregoing transactions pursuant to Section 305 of the Internal Revenue Code of 1986, as amended, or any successor section thereto) hereafter made by the Corporation to its shareholders shall not be taxable; and (2) as the Board of Directors in its discretion shall determine to be necessary or appropriate in order to preserve the relative rights of the holders of Capital Stock, on the one hand, and the holders of Series A Preferred Stock, on the other hand, as such rights are set forth in this Certificate of Incorporation. (D) In any case in which this Subsection D(c)(iv) shall require that an adjustment as a result of any event become effective at the opening of business on the business day next following a record date, and the date fixed for conversion pursuant to Subsection D(c)(i), (ii) or (iii) occurs after such record date, but before the occurrence of such event, the Corporation may in its sole discretion elect to defer the following until after the occurrence of such event: (1) issuing to the holder of any shares of the Series A Preferred Stock surrendered for conversion the additional shares of Capital Stock issuable upon such conversion over and above the shares of Capital Stock issuable upon such conversion on the basis of the Conversion Rate prior to adjustment; and (2) paying to such holder any amount in cash in lieu of a fractional share of Capital Stock pursuant to Subsection D(c)(vi). (v) Notice of Adjustments. Whenever the Conversion Rate is adjusted as herein provided, the Corporation shall: (A) forthwith compute the adjusted Conversion Rate in accordance with Subsection D(c)(iv) and prepare a certificate signed by the Chief Executive Officer, the Chairman, the President, any Vice President or the Treasurer of the Corporation setting forth the adjusted Conversion Rate, Maximum Conversion Rate and, if applicable, Strike Price, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based, and file such certificate forthwith with the transfer agent or agents for the Series A Preferred Stock and the Capital Stock; and (B) mail a notice stating that the Conversion Rate, Maximum Conversion Rate and, if applicable, Strike Price, have been adjusted, the facts requiring such adjustment and upon which such adjustment is based and setting forth the adjusted Conversion Rate, Maximum Conversion Rate and, if applicable, Strike Price, to the holders of record of the outstanding shares of the Series A Preferred Stock at or prior to the time the Corporation mails an interim financial statement to its shareholders covering the quarter-yearly fiscal period during which the facts requiring such adjustment occurred, but in any event within 45 days of the end of such quarter-yearly fiscal period. In addition to the foregoing, the Corporation will calculate and provide notice to the transfer agent or agents for the Series A Preferred Stock and the Capital Stock within 30 days after (1) the date of initial issuance of the shares of Series A Preferred Stock, or (2) the occurrence of any event triggering an adjustment of the Maximum Conversion Rate, of the number of shares of Capital Stock required to be reserved for issuance upon conversion of the issued and outstanding shares of Series A Preferred Stock; provided that no such notice need be sent if the number of shares of Capital Stock then reserved is in excess of the number of shares of Capital Stock required to be reserved as so calculated. (vi) No Fractional Shares. No fractional shares of Capital Stock shall be issued upon conversion of shares of Series A Preferred Stock but, in lieu of any fraction of a share of Capital Stock which would otherwise be issuable in respect of the aggregate number of shares of the Series A Preferred Stock surrendered by the same holder for conversion on any conversion date, the holder shall have the right to receive an amount in cash equal to the same fraction of the Current Market Price of the Capital Stock on the date of conversion. (vii) Cancellation. All shares of Series A Preferred Stock which shall have been converted into shares of Capital Stock or which shall have been purchased or otherwise acquired by the Corporation shall assume the status of authorized but unissued shares of Non-Voting Cumulative Preferred Stock undesignated as to series. (viii) Definitions. As used in this Subsection D: (A) The term "business day" shall mean any day other than a Saturday, Sunday, or a day on which banking institutions in the States of New York or Ohio are authorized or obligated by law or executive order to close. (B) The term "Current Market Price" per share of Capital Stock on any day shall be the average of the daily Market Prices for the five consecutive Trading Dates ending on the Trading Date immediately preceding the date of determination of the Current Market Price (appropriately adjusted to take into account the occurrence during such five- day period, or following such five-day period and prior to the date on which shares of Series A Preferred Stock are converted into Capital Stock, of any event that results in an adjustment of the Conversion Rate). (C) The term "Market Price" for any day means (1) if the Capital Stock is listed or admitted for trading on the New York Stock Exchange (or any successor to such exchange) or, if not so listed or admitted, on any national or regional securities exchange, the last sale price, or the closing bid price if no sale occurred, of the Capital Stock on the principal securities exchange on which the Capital Stock is listed, or (2) if not listed or traded as described in clause (1), the last reported sales price of the Capital Stock on the National Market System of the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (3) if not quoted as described in clause (2), the mean between the high bid and the low asked quotations for the Capital Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for the Capital Stock on at least five of the ten preceding days. If the Capital Stock is quoted on a national securities or central market system in lieu of a market or quotation system described above, then the closing price shall be determined in the manner set forth in clause (1) of the preceding sentence if actual transactions are reported and in the manner set forth in clause (3) of the preceding sentence if bid and asked quotations are reported but actual transactions are not. If none of the conditions set forth above is met, the closing price of Capital Stock on any day or the average of such closing prices for any period shall be the fair market value of the Capital Stock as determined by a member firm of the New York Stock Exchange, Inc. (or any successor to such exchange) selected by the Corporation. (D) The term "Notice Date" shall mean the following: with respect to any notice given by the Corporation in connection with a conversion (including any potential conversion upon the effectiveness of a Merger or Consolidation) of any of the Series A Preferred Stock, the date of mailing of such notice to the holders of Series A Preferred Stock. (E) The term "Settlement Date" shall mean the following: with respect to a Merger or Consolidation, the business day immediately prior to the effective date of the Merger or Consolidation; with respect to a conversion of any of the Series A Preferred Stock at the option of the Corporation pursuant to Subsection D(c)(ii), the business day immediately prior to the effective date of the conversion as set forth in the notice given by the Corporation in connection therewith; and with respect to a conversion of any of the Series A Preferred Stock at the option of the holder pursuant to Subsection D(c)(iii), the date upon which the certificates representing shares of Series A Preferred Stock are surrendered for conversion. (F) The term "Trading Date" shall mean (1) a date on which the New York Stock Exchange (or any successor to such exchange) is open for the transaction of business, or (2) if the Capital Stock is not at such time listed or admitted for trading on the New York Stock Exchange (or any successor to such Exchange), a date upon which the principal national or regional securities exchange upon which the Capital Stock is listed or admitted to trading is open for the transaction of business, or (3) if not listed or admitted to trading as described in clauses (1) or (2), and if at such time the sales price of Capital Stock is quoted on the National Market System of the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices then in common use, a date for which such system provides quotations with respect to securities upon which it reports, or (4) if not so quoted, and if at such time the bid and asked prices of the Capital Stock are reported by the National Quotation Bureau Incorporated, a date for which the National Quotation Bureau Incorporated provides bid and asked prices with respect to securities upon which it reports, or (5) if not so quoted, any business day. (ix) Notice of Conversion. The Corporation shall provide notice of any exercise of its right to convert shares of Series A Preferred Stock to holders of record of the Series A Preferred Stock to be converted by mailing a notice of conversion (within five business days after the Measuring Date, in the case of any Notice Date with respect to a conversion date prior to February 15, 2001) to such holders, which notice will specify an effective date of conversion that is not less than 15 nor more than 60 days after the date of such notice. The Corporation will provide notice of any potential conversion upon the effectiveness of a Merger or Consolidation not less than 15 nor more than 60 days prior to the effective date thereof; provided, however, that if the timing of the effectiveness of a Merger or Consolidation makes it impracticable to provide at least 15 days' notice, the Corporation shall provide such notice as soon as practicable prior to such effectiveness. Each such notice shall be provided by mailing notice of such conversion first class postage prepaid, to each holder of record of the Series A Preferred Stock to be converted, at such holder's address as it appears on the stock register of the Corporation. Each such notice shall state, as appropriate, the following: (A) the conversion date; (B) the number of shares of Series A Preferred Stock to be converted and, if less than all the shares held by such holder are to be converted, the number of such shares to be converted; (C) the number of shares of Capital Stock deliverable upon conversion, or a description of the formula pursuant to which such number shall be determined; (D) the place or places where certificates for such shares are to be surrendered for conversion; and (E) that dividends on the shares of Series A Preferred Stock to be converted will cease to accrue on the effective date of conversion. The Corporation's obligation to deliver shares of Capital Stock and provide cash in accordance with this Subsection D(c)(ix) shall be deemed fulfilled if, on or before an effective date of conversion, the Corporation shall deposit, with a bank or trust company having an office or agency in the Borough of Manhattan in New York City, or which has an affiliate or correspondent having an office or agency in the Borough of Manhattan in New York City, which depository has a capital and surplus of at least $50,000,000, such number of shares of Capital Stock as are required to be delivered by the Corporation pursuant to this Subsection D(c) upon the occurrence of the related conversion, together with cash sufficient to pay all accumulated unpaid dividends, cash in lieu of fractional share amounts and/or any additional payment pursuant to Subsection D(c)(ii)(B)(3), if applicable, on the shares to be converted as required by this Subsection D(c), in trust for the account of the holders of the shares to be converted, with irrevocable instructions and authority to such bank or trust company that such shares and cash be delivered upon conversion of the shares of Series A Preferred Stock so converted. Any interest accrued on such cash shall be paid to the Corporation from time to time. Any shares of Capital Stock or cash so deposited and unclaimed at the end of three years from such conversion date shall be repaid and released to the Corporation, after which the holder or holders of such shares of Series A Preferred Stock so converted shall look, subject to applicable state escheat or unclaimed funds laws, only to the Corporation for delivery of shares of Capital Stock and cash, if applicable. Each holder of shares of Series A Preferred Stock to be converted shall surrender the certificates evidencing such shares to the Corporation at the place designated in the notice of such conversion and shall thereupon be entitled to receive certificates evidencing shares of Capital Stock and cash, if applicable, following such surrender and following the date of such conversion. In case fewer than all the shares of Series A Preferred Stock represented by any such surrendered certificate are converted, a new certificate shall be issued at the expense of the Corporation representing the unconverted shares. If such notice of conversion (if required) shall have been duly given, then, notwithstanding that the certificates evidencing any shares of Series A Preferred Stock subject to conversion shall not have been surrendered, the shares represented thereby subject to conversion shall be deemed no longer outstanding, dividends with respect to the shares of Series A Preferred Stock subject to conversion shall cease to accrue after the date fixed for conversion and all rights with respect to such shares subject to conversion shall forthwith after such date cease and terminate, except for the right of the holders to receive the shares of Capital Stock and/or any applicable cash amounts without interest upon surrender of their certificates therefor; provided that if on the date fixed for conversion shares of Capital Stock and cash, if applicable, necessary for the conversion shall have been deposited by the Corporation in trust for the account of the holders of the shares of Series A Preferred Stock so to be converted as provided above, then the holder or holders of such shares of Series A Preferred Stock so converted shall look only to such bank or trust company for delivery of shares of Capital Stock and cash, if applicable, unless and until such shares of Capital Stock and cash are repaid and released to the Corporation. No holder of a certificate of shares of Series A Preferred Stock shall be, or have any rights as, a holder of the shares of Capital Stock issuable in connection with the conversion thereof, including, without limitation, voting rights or the right to receive any dividend from the Corporation with respect to such shares of Capital Stock, until surrender of such certificate for a certificate representing such Capital Stock. Upon such surrender, there shall be paid to the holder the amount of any dividend or other distribution (without interest) which became payable in respect of the number of whole shares of Capital Stock issuable upon such surrender on or after the conversion date, but which was not paid by reason of any earlier failure to surrender certificates that represented shares of Series A Preferred Stock. If fewer than all the outstanding shares of Series A Preferred Stock are to be converted at the option of the Corporation, shares to be converted shall be selected by the Corporation from outstanding shares of Series A Preferred Stock by lot or pro rata (as nearly as may be) or by any other method reasonably determined by the Board of Directors of the Corporation to be appropriate and fair to the holders of Series A Preferred Stock. (x) Corporation's Option to Pay Accumulated Unpaid Dividends in Common Stock Upon Conversion on or after February 15, 2001. Notwithstanding anything to the contrary contained herein, if the effective date of any conversion is on or after February 15, 2001 and if on such date there are accumulated unpaid dividends with respect to the Series A Preferred Stock to be so converted, then on such effective date the Corporation may deliver, in lieu of any cash payment in respect of accumulated unpaid dividends and, if applicable, any additional payment pursuant to Subsection D(c)(ii)(B)(3), that number of shares of Capital Stock the aggregate Current Market Price of which on such date shall equal the amount of such cash payment. Such option may be exercised by the Corporation for all or part of such cash payment. (xi) No Interest on Accumulated Unpaid Dividends. Any payment with respect to accumulated unpaid dividends upon conversion of shares of Series A Preferred Stock, whether such payment is made in cash or, pursuant to Subsection D(c)(x), in shares of Capital Stock, shall not provide for any interest on such accumulated unpaid dividends. (d) Voting Rights. (i) Holders of Series A Preferred Stock shall have no right to vote on any matter submitted to a vote of shareholders of the Corporation, except as otherwise provided by applicable law and this Subsection D(d). In addition to any voting rights to which the holders of shares of Series A Preferred Stock shall be entitled pursuant to applicable law, whenever, at any time, Preferential Dividends payable on the Series A Preferred Stock shall be in arrears with respect to six (6) or more Preferential Dividend Payment Dates, whether or not consecutive, the holders of shares of Series A Preferred Stock shall have the right, voting separately as a class with holders of shares of any one or more series of Non- Voting Cumulative Preferred Stock, Series Preference Stock and/or any other class or series of shares ranking on a parity with shares of Series A Preferred Stock as to dividends and upon which like voting rights have been conferred and are exercisable, to elect two directors of the Corporation at the Corporation's next meeting of shareholders at which directors are to be elected and at each subsequent meeting of shareholders at which directors are to be elected until such right is terminated as provided in this Subsection D(d). Upon the vesting of such voting right in the holders of shares of Series A Preferred Stock, the maximum authorized number of members of the Board of Directors shall automatically be increased by two and the two vacancies so created shall be filled by vote of the holders of shares of Series A Preferred Stock (voting as a class with the holders of shares of any one or more other class or series of shares ranking on such a parity) as set forth herein. The right of the holders of shares of Series A Preferred Stock to elect members of the Board of Directors of the Corporation as aforesaid shall continue until such time as all dividends accumulated on shares of Series A Preferred Stock shall have been paid or deposited for payment in full, at which time such right shall terminate, except as by law expressly provided, subject to revesting in the event of each and every subsequent default of the character above mentioned. (ii) Upon any termination of the right of the holders of Series A Preferred Stock and, if applicable, the holders of shares of any one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares ranking on such a parity to vote as a class for directors as herein provided, the term of office of all directors then in office elected by shares of Series A Preferred Stock and such other series voting as a class shall terminate immediately. If the office of any director elected by the holders of shares of Series A Preferred Stock and, if applicable, the holders of shares of one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares on such a parity, voting as a class, becomes vacant by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, the remaining director elected by the holders of shares of Series A Preferred Stock and, if applicable, the holders of shares of any one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares ranking on such a parity, voting as a class, may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. Whenever the special voting powers vested in the holders of shares of Series A Preferred Stock and the holders of shares of any one or more other series of Non-Voting Cumulative Preferred Stock, Series Preference Stock and/or other class or series of shares ranking on such a parity to vote as a class for directors as provided in this Subsection D(d)(ii) shall have expired, the number of directors shall become such number as may be provided for in the By-Laws, or resolution of the Board of Directors thereunder, irrespective of any increase made pursuant to the provisions of this Subsection D(d)(ii). (iii) While any Series A Preferred Stock is outstanding, the Corporation shall not, without the affirmative consent (given in writing or at a meeting duly called for that purpose) of the holders of at least two-thirds (2/3rds) of the aggregate number of votes entitled to be exercised by holders of all affected series of Non-Voting Cumulative Preferred Stock then outstanding (provided that each other series shall have voting rights similar or identical to the voting rights set forth in this Subsection D(d)(iii)): (A) amend the Certificate of Incorporation of the Corporation to authorize the creation of any class or series of stock having a preference as to dividends or upon liquidation senior to or on a parity with the Series A Preferred Stock (hereinafter in this Subsection (G)(d)(iii) referred to as "Senior Stock"); provided, however, that no such approval of holders of Series A Preferred Stock (or other affected series of Non-Voting Cumulative Preferred Stock having similar voting rights) shall be required to amend the Certificate of Incorporation of the Corporation to authorize the creation of any series of Senior Stock that may be authorized out of the Non-Voting Cumulative Preferred Stock or the Series Preference Stock, the terms of which may be established by any amendment to the Certificate of Incorporation of the Corporation which may be adopted by the Board of Directors of the Corporation without shareholder approval, or (B) amend, alter or repeal the Certificate of Incorporation of the Corporation in a manner that would materially adversely affect the terms of Series A Preferred Stock. (iv) With respect to any matter upon which holders of shares of Series A Preferred Stock shall be entitled to vote pursuant to this Subsection D(d), each such holder shall be entitled to exercise the number of votes equal to the maximum number of shares of Capital Stock into which the shares of Series A Preferred Stock held by such holder shall then be convertible at the option of the Corporation pursuant to Subsection D(c)(ii) or at the option of the holder pursuant to Subsection (G)(c)(iii), whichever is greater, on the record date for determining the shareholders of the Corporation entitled to vote. (e) Increase in Shares. The number of shares of Series A Preferred Stock may, to the extent of the Corporation's authorized and unissued Non-Voting Cumulative Preferred Stock, be increased by further resolution duly adopted by the Board of Directors and the filing of an amendment to the Certificate of Incorporation of the Corporation. (f) Exclusive Rights. Each holder of shares of Series A Preferred Stock shall hold such Series A Preferred Stock subject to the right of the Corporation to effect a conversion in accordance with the provisions of Subsection D(c) hereof and, in the event of such a conversion, shall have the right to receive, as full payment, discharge and satisfaction of the obligations of the Corporation with respect to such Series A Preferred Stock, only those shares of Capital Stock and cash, if applicable, delivered as provided in accordance with Subsection D(c) hereof. (g) Equal Rank. All shares of Series A Preferred Stock shall be identical in all respects, and all shares of Series A Preferred Stock shall be of equal rank with shares of Mandatorily Exchangeable Cumulative Preference Stock, Series C, in respect of the preference as to dividends and to payments upon the Liquidation of the Corporation. SUBSECTION E. SPECIAL PROVISIONS APPLICABLE TO SERIES C PREFERENCE STOCK There is hereby established Series C Preference Stock which shall be designated "Mandatorily Exchangeable Cumulative Preference Stock, Series C" ("Series C Preference Stock") and shall consist of One Million (1,000,000) shares, and no more. The relative, participating, optional and other special rights and the qualifications, limitations and restrictions of the Series C Preference Stock, other than those specified for all series of Series Preference Stock in Subsection A of this Section IV, shall be as follows: (a) Dividends. (i) In respect of the period beginning on the date of issuance of the Series C Preference Stock and ending on and including September 7, 1995 (the "Preferred Period"), the holders of outstanding shares of the Series C Preference Stock shall be entitled to receive (subject to the rights of holders of Series A Preferred Stock and any series of Series Preference Stock and/or any other class or series of preferred stock which the Corporation may in the future issue which ranks prior to or on a parity with the Series C Preference Stock with respect to dividends), when, as and if declared by the Board of Directors out of funds legally available therefor, cumulative preferential cash dividends at the per share rate of $1.65 per quarter and no more ("Preferential Dividends"), accruing and payable on the seventh day of March, June, September and December of each year during the Preferred Period (each such date being hereinafter referred to as a "Preferential Dividend Payment Date") commencing December 7, 1992; provided, however, that the Preferential Dividend payable on December 7, 1992 (the "Initial Preferential Dividend") shall be equal to the sum of (x) $0.85 times a fraction, the numerator of which is the number of days from September 8, 1992 to and including the date of issuance of the Series C Preference Stock and the denominator of which is 90, plus (y) $1.65 times a fraction, the numerator of which is the number of days from the date of issuance of the Series C Preference Stock to and including December 7, 1992 and the denominator of which is 90. If December 7, 1992 or any other Preferential Dividend Payment Date shall not be a business day, then the Preferential Dividend Payment Date shall be on the next succeeding business day. Each such dividend will be payable to holders of record as they appear on the stock books of the Corporation on such record date, not less than 10 nor more than 60 days preceding the Preferential Dividend Payment Date, as shall be fixed by the Board of Directors. Dividends on the Series C Preference Stock in respect of the Preferred Period shall accrue on a quarterly basis commencing from the date of issuance of the Series C Preference Stock, and dividends accruing on each Preferential Dividend Payment Date shall accumulate to the extent not paid on such date. Accumulated unpaid dividends shall not bear interest. (ii) So long as any shares of Series C Preference Stock are outstanding, no dividend (including, but not limited to, a dividend or distribution paid in shares of, or warrants or rights to subscribe for or purchase shares of, Capital Stock or in any other stock of the Corporation) shall be declared or paid or set aside for payment or other distribution declared or made upon the Capital Stock or upon any other stock of the Corporation ranking junior to or (except as provided in the following sentence) on a parity with Series C Preference Stock as to dividends or upon liquidation, nor shall any Capital Stock nor any other stock of the Corporation ranking junior to or on a parity with Series C Preference Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired 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 (except by conversion into or exchange for stock of the Corporation ranking junior to Series C Preference Stock as to dividends and upon liquidation) unless, in each case, the full Preferential Dividends, if any, accumulated on all outstanding shares of the Series C Preference Stock through the most recent Preferential Dividend Payment Date shall have been paid or deposited for payment or contemporaneously are declared and paid or deposited for payment through the most recent Preferential Dividend Payment Date. When dividends have not been paid in full upon the shares of Series C Preference Stock, all dividends and other distributions declared upon the Series C Preference Stock and any other shares of the Corporation ranking on a parity as to dividends and such other distributions with the shares of Series C Preference Stock shall be declared pro rata so that the amount of dividends and other distributions declared per share on the Series C Preference Stock and such other shares shall in all cases bear to each other the same ratio that accrued dividends per share on the shares of Series C Preference Stock and such other shares bear to each other. Holders of the shares of Series C Preference Stock shall not be entitled to any dividends, whether payable in cash, property or stock, in excess of full cumulative dividends, as herein provided. (iii) Any dividend payment made on shares of Series C Preference Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to shares of Series C Preference Stock. (iv) At the option of the Corporation, following the giving of notice to holders of record of Series C Preference Stock prior to the applicable record date, the Corporation may deliver on any Preferential Dividend Payment Date, in lieu of the cash dividends described in clause (i) above, a number of shares of Capital Stock equal to the amount of cash dividends described in such clause (i) divided by the Current Market Price (as hereinafter defined) of the Capital Stock determined as of the second Trading Date (as hereinafter defined) immediately preceding the relevant Notice Date (as hereinafter defined). Such option may be exercised by the Corporation in whole or in part. The notice required pursuant to this paragraph shall be provided by mailing notice of the Corporation's election, first class postage prepaid, to each holder of record of the Series C Preference Stock, at such holder's address as it appears on the stock register of the Corporation. Each such mailed notice shall state, as appropriate, the record date, the number of shares of Capital Stock to be delivered per share of Series C Preference Stock and the Current Market Price used to calculate such number of shares of Capital Stock. No fractional shares of Capital Stock shall be issued pursuant to this Subsection E(a)(iv) but, in lieu of any fraction of a share of Capital Stock which would otherwise be issuable in respect of the aggregate number of shares of the Series C Preference Stock held by the same holder, each such holder shall have the right to receive an amount in cash equal to the same fraction of the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the relevant Notice Date or a cash payment equal to such holder's proportionate interest in the net proceeds (following the deduction of applicable transaction costs) from the sale, promptly by an agent on behalf of all such holders, of shares of Capital Stock representing the aggregate of such fractional shares. (b) Liquidation. (i) Upon any dissolution, liquidation or winding up of the affairs of the Corporation, whether voluntary or involuntary (collectively, a "Liquidation"), the holders of shares of Series C Preference Stock shall be entitled to receive out of the assets of the Corporation available for distribution to shareholders, after payment of all debts and other liabilities of the Corporation and all liquidation preferences of holders of shares of any class or series of preferred stock which the Corporation may in the future issue which ranks prior to the Series C Preference Stock with respect to liquidation rights, but before any distribution or payment is made to holders of Capital Stock of the Corporation or on any other shares of the Corporation ranking junior to the shares of Series C Preference Stock upon liquidation, liquidating distributions in the amount of $90 per share, plus an amount equal to all Preferential Dividends accrued and unpaid thereon (including dividends accumulated and unpaid) to the date of Liquidation, and no more. If upon any Liquidation the amounts payable with respect to the Series C Preference Stock and any other shares of the Corporation ranking as to any such distribution on a parity with the Series C Preference Stock are not paid in full, the holders of shares of Series C Preference Stock and of such other shares will share ratably in any such distribution of assets of the Corporation in proportion to the full respective distributable amounts to which they are entitled. After payment of the full amount of the liquidating distribution to which they are entitled, the holders of shares of Series C Preference Stock will not be entitled to any further participation in any distribution or payments by the Corporation. (ii) Neither the merger nor consolidation of the Corporation into or with any other corporation, nor the merger or consolidation of any other corporation into or with the Corporation, nor a sale, transfer or lease of all or any part of the assets of the Corporation, shall be deemed to be a Liquidation for purposes of this Subsection E(b). (c) Conversions. (i) Automatic Conversion on Final Conversion Date. Unless earlier converted in accordance with the provisions hereof, on September 7, 1995 (the "Final Conversion Date"), each outstanding share of Series C Preference Stock shall automatically convert into: (A) that number of shares of Capital Stock as shall be equal to the product of (x) the Common Equivalent Rate (determined as provided in Subsection E(c)(iv)) determined as of the Final Conversion Date, and (y) the Appreciation Adjustment Factor (determined as provided in Subsection E(c)(v)) determined as of the second Trading Date preceding the Final Conversion Date; and (B) the right to receive an amount in cash equal to all accrued and unpaid dividends on such share to and including the Final Conversion Date, whether or not declared, out of funds legally available therefor; provided, however, that to the extent that on the Final Conversion Date the Corporation shall have failed to fulfill its obligation to pay or deposit (in accordance with Subsection E(c)(x)) the funds set forth in clause (B) above and shall not have previously notified holders of Series C Preference Stock of its exercise of its option, pursuant to the following paragraph, to deliver shares of Capital Stock in whole or partial fulfillment of its obligations pursuant to clause (B) above, then each outstanding share of Series C Preference Stock shall automatically convert into that number of shares of Capital Stock as shall equal the sum of (x) the number of shares determined in accordance with clause (A) above, plus (y) the number of shares determined by subtracting from the amount of cash described in clause (B) above, the amount of such cash actually paid or deposited (in accordance with Subsection E(c)(x)), and dividing the remainder by the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the Final Conversion Date. At the option of the Corporation, following the giving of notice thereof to holders of record of Series C Preference Stock in accordance with Subsection E(c)(x), it may deliver on the Final Conversion Date, in lieu of the cash described in clause (B) above, a number of shares of Capital Stock equal to the amount of cash described in such clause (B) divided by the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the Notice Date. Such option may be exercised by the Corporation for all or part of such cash consideration. (ii) Automatic Conversion Upon the Occurrence of Certain Events. Immediately prior to the effectiveness of a merger or consolidation of the Corporation that results in the conversion or exchange of the Capital Stock into or for, or that results in the holders of Capital Stock obtaining the right to receive, other securities or other property, whether of the Corporation or of any other entity (any such merger or consolidation is referred to herein as a "Merger or Consolidation"), other than a Merger or Consolidation in which the Series C Preference Stock remains outstanding and holders of Series C Preference Stock obtain the right to receive the same securities or other property that they would have received with respect to the number of shares of Capital Stock which such holders would have received pursuant to clause (A) (only) of this Subsection E(c)(ii) upon conversion of their shares of Series C Preference Stock immediately prior to the effectiveness of the Merger or Consolidation, each outstanding share of Series C Preference Stock shall automatically convert into: (A) that number of shares of Capital Stock as shall be equal to the product of (x) the Common Equivalent Rate determined as of the effective date of the Merger or Consolidation, and (y) the Appreciation Adjustment Factor determined as of the second Trading Date prior to the applicable Notice Date; plus (B) the right to receive an amount of cash equal to the accrued and unpaid dividends on such share of Series C Preference Stock to and including the Settlement Date (as hereinafter defined); plus (C) the right to receive an amount of cash (the "Remaining Dividend Premium"), equal on the date of issuance of the Series C Preference Stock to $8.80 plus the amount by which the Initial Preferential Dividend would have exceeded $0.85, declining on December 7, 1992 by the amount by which the Initial Preferential Dividend exceeded $0.85, and declining thereafter by $0.80 on each Preferential Dividend Payment Date from and including March 7, 1992 to zero on September 7, 1995, in each case determined as of the Settlement Date; plus (D) if the effective date of such Merger or Consolidation shall occur on a date which is prior to the payment date of a cash dividend which has been declared on shares of Capital Stock but after the record date for such dividend payment, the right to receive an amount of cash equal to $0.85; plus (E) if the effective date of such Merger or Consolidation shall occur on a Preferential Dividend Payment Date and no amount shall be payable pursuant to clause (D) immediately above, the right to receive an amount of cash equal to $0.85; provided, however, that to the extent that on the effective date the Corporation shall have failed to fulfill its obligation to pay or deposit (in accordance with Subsection E(c)(x) below) the funds set forth in clauses (B),(C), (D) and (E) above and shall not have previously notified holders of Series C Preference Stock of its exercise of its option, pursuant to the following paragraph, to deliver shares of Capital Stock in whole or partial fulfillment of its obligations pursuant to clauses (B),(C), (D) and (E) above, then each outstanding share of Series C Preference Stock shall automatically convert into that number of shares of Capital Stock as shall equal the sum of (x) the number of shares determined in accordance with clause (A) above, plus (y) a number of shares determined by subtracting from the amount of cash described in clauses (B), (C), (D) and (E) above the amount of such cash actually paid or deposited (in accordance with Subsection E(c)(x)), and dividing the remainder by the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the effective date of such Merger or Consolidation. At the option of the Corporation, following the giving of notice thereof to holders of record of Series C Preference Stock in accordance with Subsection E(c)(x), it may deliver on the effective date of such Merger or Consolidation, in lieu of the cash described in clauses (B), (C), (D) and (E) above, a number of shares of Capital Stock equal to the amount of cash described in such clauses (B),(C), (D) and (E) divided by the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the Notice Date. Such option may be exercised by the Corporation for all or part of such cash consideration. (iii) Conversion at the Option of the Corporation. At any time and from time to time prior to the Final Conversion Date, the Corporation shall have the right to convert, in whole or in part, the outstanding shares of Series C Preference Stock. Each outstanding share of Series C Preference Stock to be converted shall automatically convert into: (A) that number of shares of Capital Stock as shall be equal to the product of (x) the Common Equivalent Rate determined as of the effective date of the conversion, and (y) the Appreciation Adjustment Factor determined as of the second Trading Date prior to the applicable Notice Date; plus (B) the right to receive an amount of cash equal to the accrued and unpaid dividends on such share of Series C Preference Stock to and including the Settlement Date; plus (C) the right to receive an amount of cash equal to the Remaining Dividend Premium on such share of Series C Preference Stock, determined as of the Settlement Date; plus (D) if the effective date of such conversion shall occur on a date which is prior to the payment date of a cash dividend which has been declared on shares of Capital Stock but after the record date for such dividend payment, the right to receive an amount of cash equal to $0.85; plus (E) if the effective date of such conversion shall occur on a Preferential Dividend Payment Date and no amount shall be payable pursuant to clause (D) immediately above, the right to receive an amount of cash equal to $0.85; provided, however, that to the extent that on the effective date of any such conversion the Corporation shall have failed to fulfill its obligation to pay or deposit (in accordance with Subsection E(c)(x) below) the funds set forth in clauses (B),(C), (D) and (E) above and shall not have previously notified holders of Series C Preference Stock to be converted of its exercise of its option, pursuant to the following paragraph, to deliver shares of Capital Stock in whole or partial fulfillment of its obligations pursuant to clauses (B), (C), (D) and (E) above, then each outstanding share of Series C Preference Stock to be converted shall automatically convert into that number of shares of Capital Stock as shall equal the sum of (x) the number of shares determined in accordance with clause (A) above, plus (y) a number of shares determined by subtracting from the amount of cash described in clauses (B), (C), (D) and (E) above the amount of such cash actually paid or deposited (in accordance with Subsection E(c)(x)), and dividing the remainder by the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the effective date of any such conversion. At the option of the Corporation, it may deliver on the effective date of any such conversion, in lieu of the cash consideration described in clauses (B), (C), (D) and (E) above, a number of shares of Capital Stock equal to the amount of cash consideration described in such clauses (B), (C), (D) and (E) divided by the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the Notice Date. Such option may be exercised by the Corporation for all or part of such cash consideration. (iv) Common Equivalent Rate; Adjustments. The Common Equivalent Rate to be used to determine the number of shares of Capital Stock to be delivered on the conversion of the Series C Preference Stock into shares of Capital Stock pursuant to Subsection E(c)(i), (ii) and (iii) shall be initially five (5) shares of Capital Stock for each share of Series C Preference Stock; provided, however, that such Common Equivalent Rate shall be subject to adjustment from time to time as provided below in this Subsection E(c)(iv). All adjustments to the Common Equivalent Rate shall be calculated in 1/100ths of a share of Capital Stock. Such rate in effect at any time is herein called the "Common Equivalent Rate." (A) If the Corporation shall: (1) pay a dividend or make a distribution with respect to the Capital Stock in shares of Capital Stock (other than a dividend or distribution which is also paid to holders of Series C Preference Stock and in which such holders shall receive, with respect to each share of Series C Preference Stock, the same number of shares of Capital Stock as shall be distributed with respect to that number of shares of Capital Stock as shall be equal to the product of (x) the Common Equivalent Rate determined as of the applicable record date for the determination of shareholders entitled to receive such dividend or distribution and (y) the Appreciation Adjustment Factor determined as of the second Trading Date prior to the applicable Notice Date), (2) subdivide or split its outstanding shares of Capital Stock, (3) combine its outstanding shares of Capital Stock into a smaller number of shares, or (4) issue by reclassification of its shares of Capital Stock any shares of Capital Stock of the Corporation then, in any such event, the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect immediately prior to the date of such event by a fraction, of which the numerator shall be the number of outstanding shares of Capital Stock immediately following such event, and of which the denominator shall be the number of outstanding shares of Capital Stock immediately prior to such event. Such adjustment shall become effective at the opening of business on the business day next following the record date for determination of shareholders entitled to receive such dividend or distribution in the case of a dividend or distribution and shall become effective immediately after the effective date in case of a subdivision, split, combination, or reclassification. (B) If the Corporation shall pay a dividend or make a distribution to all holders of its Capital Stock of evidence of its indebtedness or other assets (including securities of the Corporation but excluding any cash dividends or distributions and dividends referred to in clause (A) above), or shall distribute to all holders of its Capital Stock rights or warrants to subscribe for or purchase securities of the Corporation or any of its subsidiaries, (in each case other than a dividend or distribution which is also paid or made to holders of Series C Preference Stock in which such holders shall receive, with respect to each share of Series C Preference Stock, the same evidence of indebtedness or other assets, or the same rights or warrants, as shall be paid or distributed with respect to that number of shares of Capital Stock as shall be equal to the product of (x) the Common Equivalent Rate determined as of the applicable record date for the determination of shareholders entitled to receive such dividend or distribution and (y) the Appreciation Adjustment Factor determined as of the second Trading Date prior to the applicable Notice Date), then in each such case the Common Equivalent Rate shall be adjusted by multiplying the Common Equivalent Rate in effect immediately prior to the date of such distribution by a fraction, of which the numerator shall be the Current Market Price per share of Capital Stock on the record date mentioned below, and of which the denominator shall be such Current Market Price per share of Capital Stock less the fair market value (as determined by the Board of Directors of the Corporation, whose determination shall be conclusive) as of such record date of the portion of the assets or evidences of indebtedness so distributed, or of such subscription rights or warrants, applicable to one share of Capital Stock. Such adjustment shall become effective on the opening of business on the business day next following the record date for the determination of shareholders entitled to receive such distribution. (C) Anything in this Subsection E(c) notwithstanding, the Board of Directors shall be entitled to make such upward adjustments in the Common Equivalent Rate, in addition to those required by this Subsection E(c), (1) as the Board of Directors in its discretion shall determine to be advisable, in order that any stock dividends, subdivision of shares, distribution of rights to purchase stock or securities, or a distribution of securities convertible into or exchangeable for stock (or any transaction which could be treated as any of the foregoing transactions pursuant to Section 305 of the Internal Revenue Code of 1986, as amended) hereafter made by the Corporation to its shareholders shall not be taxable; and (2) as the Board of Directors in its discretion shall determine to be necessary or appropriate in order to preserve the relative rights of the holders of Capital Stock, on the one hand, and the holders of Series C Preference Stock, on the other hand, as such rights are set forth in this Certificate of Incorporation. (D) In any case in which this Subsection E(c)(iv) shall require that an adjustment as a result of any event become effective at the opening of business on the business day next following a record date, and the date fixed for conversion pursuant to Subsection E(c)(i), (ii) or (iii) occurs after such record date, but before the occurrence of such event, the Corporation may in its sole discretion elect to defer the following until after the occurrence of such event: (1) issuing to the holder of any shares of the Series C Preference Stock surrendered for conversion the additional shares of Capital Stock issuable upon such conversion over and above the shares of Capital Stock issuable upon such conversion on the basis of the Common Equivalent Rate prior to adjustment; and (2) paying to such holder any amount in cash in lieu of a fractional share of Capital Stock pursuant to Subsection E(c)(vii). (v) Appreciation Adjustment Factor; Adjustments. On any date, the "Appreciation Adjustment Factor" shall be determined as follows: (A) If, on such date, the Current Market Price per share of Capital Stock shall be less than or equal to the Appreciation Cap (as hereinafter defined), then the Appreciation Adjustment Factor shall be equal to one (1). (B) If, on such date, the Current Market Price per share of Capital Stock shall be greater than the Appreciation Cap, then the Appreciation Adjustment Factor shall be equal to a fraction, the numerator of which is the Appreciation Cap and the denominator of which is the Current Market Price per share of Capital Stock. (C) The Appreciation Cap shall be initially $24.00 per share of Capital Stock. If, as and when the Common Equivalent Rate is adjusted, the Appreciation Cap shall be adjusted, such that the ratio which the Appreciation Cap in effect immediately following such adjustment bears to the Appreciation Cap in effect immediately prior to such adjustment is the same ratio as that which the Common Equivalent Rate in effect immediately prior to such adjustment bears to the Common Equivalent Rate in effect immediately following such adjustment. The Appreciation Cap in effect at any time is herein called the "Appreciation Cap." (vi) Notice of Adjustments. Whenever the Common Equivalent Rate is adjusted as herein provided, the Corporation shall: (A) forthwith compute the adjusted Common Equivalent Rate and Appreciation Cap in accordance with this Subsection E(c)(vi) and prepare a certificate signed by the Chief Executive Officer, the Chairman, the President, any Vice President or the Treasurer of the Corporation setting forth the adjusted Common Equivalent Rate and Appreciation Cap, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based, and file such certificate forthwith with the transfer agent or agents for the Series C Preference Stock and the Capital Stock; and (B) mail a notice stating that the Common Equivalent Rate and the Appreciation Cap have been adjusted, the facts requiring such adjustment and upon which such adjustment is based and setting forth the adjusted Common Equivalent Rate and Appreciation Cap to the holders of record of the outstanding shares of the Series C Preference Stock at or prior to the time the Corporation mails an interim statement to its shareholders covering the quarter-yearly period during which the facts requiring such adjustment occurred, but in any event within 45 days of the end of such quarter- yearly period. In addition to the foregoing, the Corporation will calculate and provide notice to the transfer agent or agents for the Series C Preference Stock and the Capital Stock within 30 days after (1) the date of initial issuance of the shares of Series C Preference Stock, (2) each Preferential Dividend Payment Date or (3) the occurrence of any event triggering an adjustment of the Common Equivalent Rate, of the number of shares of Capital Stock required to be reserved for issuance upon conversion of the issued and outstanding shares of Series C Preference Stock (calculated as if the Current Market Price of any shares of Capital Stock issuable in payment of Preferential Dividends or Remaining Dividend Premium were 30% of the lowest Current Market Price of Capital Stock applicable during the preceding 100 days); provided that no such notice need be sent if the number of shares of Capital Stock then reserved is in excess of the number of shares of Capital Stock required to be reserved as so calculated. (vii) No Fractional Shares. No fractional shares of Capital Stock shall be issued upon conversion of shares of the Series C Preference Stock but, in lieu of any fraction of a share of Capital Stock which would otherwise be issuable in respect of the aggregate number of shares of the Series C Preference Stock surrendered by the same holder for redemption or conversion on any redemption or conversion date or in payment of accrued and unpaid dividends, the Remaining Dividend Premium or any other amount, the holder shall have the right to receive an amount in cash equal to the same fraction of the Current Market Price of the Capital Stock determined as of the second Trading Date immediately preceding the relevant Notice Date or, with respect to conversions pursuant to Subsection E(c)(i), the Final Conversion Date, as the case may be, or a cash payment equal to such holder's proportionate interest in the net proceeds (following the deduction of applicable transaction costs) from the sale, promptly by an agent on behalf of all such holders, of shares of Capital Stock representing the aggregate of such fractional shares. (viii) Cancellation. All shares of Series C Preference Stock which shall have been converted into or redeemed for shares of Capital Stock or which shall have been purchased or otherwise acquired by the Corporation shall assume the status of authorized but unissued shares of Series Preference Stock undesignated as to series. (ix) Definitions. As used in this Subsection E, (A) the term "business day" shall mean any day other than a Saturday, Sunday, or a day on which banking institutions in the States of New York or Ohio are authorized or obligated by law or executive order to close; (B) the term "Market Price" for any day means (1) if the Capital Stock is listed or admitted for trading on the New York Stock Exchange (or any successor to such exchange) or, if not so listed or admitted, on any national or regional securities exchange, the last sale price, or the closing bid price if no sale occurred, of such class of stock on the principal securities exchange on which such class of stock is listed, or (2) if not listed or traded as described in clause (1), the last reported sales price of Capital Stock on the National Market System of the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted, or (3) if not quoted as described in clause (2), the mean between the high bid and the low asked quotations for the Capital Stock as reported by the National Quotation Bureau Incorporated if at least two securities dealers have inserted both bid and asked quotations for such class of stock on at least five of the ten preceding days. If the Capital Stock is quoted on a national securities or central market system in lieu of a market or quotation system described above, then the closing price shall be determined in the manner set forth in clause (1) of the preceding sentence if actual transactions are reported and in the manner set forth in clause (3) of the preceding sentence if bid and asked quotations are reported but actual transactions are not. If none of the conditions set forth above is met, the closing price of Capital Stock on any day or the average of such closing prices for any period shall be the fair market value of such class of stock as determined by a member firm of the New York Stock Exchange, Inc. (or any successor to such exchange) selected by the Corporation. (C) the term "Current Market Price" per share of Capital Stock on any day shall be the average of the daily Market Prices for the ten consecutive Trading Dates ending on and including the date of determination of the Current Market Price (appropriately adjusted to take into account the occurrence during such ten-day period, or following such ten-day period and prior to the date on which shares of Series C Preference Stock are converted into Capital Stock, of any event that results in an adjustment of the Common Equivalent Rate). (D) the term "Notice Date" shall mean the following: with respect to any notice given by the Corporation in connection with a conversion (including any potential conversion upon the effectiveness of a Merger or Consolidation) of any of the Series C Preference Stock, the earlier of the commencement of the mailing of such notice to the holders of Series C Preference Stock or the date such notice is first published in accordance with Subsection E(c)(x); with respect to any notice given by the Corporation in connection with its exercise of its option to deliver shares of Capital Stock in lieu of cash in payment of dividends on the Series C Preference Stock, including a notice stating that the Corporation intends to exercise its option to deliver shares of Capital Stock in satisfaction of accrued and unpaid dividends on the Final Conversion Date, the commencement of the mailing of such notice to the holders of Series C Preference Stock; and with respect to any notice given by the Corporation in connection with a dividend or distribution referred to in Subsection E(c)(iv), the earlier of the commencement of the mailing of notice of such dividend or distribution to the holders of Capital Stock or the date such notice is first published in an Authorized Newspaper (as hereinafter defined). (E) the term "Settlement Date" shall mean the following: with respect to a Merger or Consolidation, the business day immediately prior to the effective date of the Merger or Consolidation; and with respect to a conversion of any of the Series C Preference Stock pursuant to Subsection E(c)(iii), the business day immediately prior to the effective date of the conversion as set forth in the notice given by the Corporation in connection therewith; and (F) the term "Trading Date" shall mean (1) a date on which the New York Stock Exchange (or any successor to such exchange) is open for the transaction of business, or (2) if the Capital Stock is not at such time listed or admitted for trading on the New York Stock Exchange (or any successor to such Exchange), a date upon which the principal national or regional securities exchange upon which the Capital Stock is listed or admitted to trading is open for the transaction of business, or (3) if not listed or admitted to trading as described in clauses (1) or (2), and if at such time the sales price of Capital Stock is quoted on the National Market System of the National Association of Securities Dealers Automated Quotations System, or any similar system of automated dissemination of quotations of securities prices then in common use, a date for which such system provides quotations with respect to securities upon which it reports, or (4) if not so quoted, and if at such time the bid and asked prices of Capital Stock are reported by the National Quotation Bureau Incorporated, a date for which the National Quotation Bureau Incorporated provides bid and asked prices with respect to securities upon which it reports, or (5) if not so quoted, any business day. (x) Notice of Conversion. The Corporation will provide notice of any conversion (including any potential conversion upon the effectiveness of a Merger or Consolidation, but not including any conversion on the Final Conversion Date) of shares of Series C Preference Stock to holders of record of the Series C Preference Stock to be converted not less than 15 nor more than 60 days prior to the date fixed for such conversion; provided, however, that if the timing of the effectiveness of a Merger or Consolidation makes it impracticable to provide at least 15 days notice, the Corporation shall provide such notice as soon as practicable prior to such effectiveness. Such notice shall be provided by mailing notice of such conversion first class postage prepaid, to each holder of record of the Series C Preference Stock to be converted, at such holder's address as it appears on the stock register of the Corporation, and by publishing notice thereof in The Wall Street Journal or The New York Times or, if neither such newspaper is then being published, any other daily newspaper of national circulation (each, an "Authorized Newspaper"). Each such mailed or published notice shall state, as appropriate, the following: (A) the conversion date; (B) the number of shares of Series C Preference Stock to be converted and, if less than all the shares held by such holder are to be converted, the number of such shares to be converted; (C) the number of shares of Capital Stock deliverable upon conversion; (D) whether the Corporation is exercising any option to deliver shares of Capital Stock in lieu of cash and the Current Market Price to be used to calculate the number of such shares of Capital Stock; (E) the place or places where certificates for such shares are to be surrendered for conversion; and (F) that dividends on the shares of Series C Preference Stock to be converted will cease to accrue on such conversion date. The Corporation's obligation to deliver shares of Capital Stock and provide cash in accordance with this Subsection E(c)(x) shall be deemed fulfilled if, on or before a conversion date, the Corporation shall deposit, with a bank or trust company having an office or agency in the Borough of Manhattan in New York City, or which has an affiliate or correspondent having an office or agency in the Borough of Manhattan in New York City, which depository has a capital and surplus of at least $50,000,000, such number of shares of Capital Stock as are required to be delivered by the Corporation pursuant to this Subsection E(c) upon the occurrence of the related conversion (including the payment of fractional share amounts), together with shares of Capital Stock and/or cash sufficient to pay all accrued and unpaid dividends and/or any applicable Remaining Dividend Premium on the shares to be converted as required by this Subsection E(c), in trust for the account of the holders of the shares to be converted (and so as to be and continue to be available therefor), with irrevocable instructions and authority to such bank or trust company that such shares and cash be delivered upon conversion of the shares of Series C Preference Stock so converted. Any interest accrued on such cash shall be paid to the Corporation from time to time. Any shares of Capital Stock or cash so deposited and unclaimed at the end of three years from such conversion date shall be repaid and released to the Corporation, after which the holder or holders of such shares of Series C Preference Stock so converted shall look, subject to applicable state escheat or unclaimed funds laws, only to the Corporation for delivery of shares of Capital Stock and cash, if applicable. Each holder of shares of Series C Preference Stock to be converted shall surrender the certificates evidencing such shares to the Corporation at the place designated in the notice of such conversion and shall thereupon be entitled to receive certificates evidencing shares of Capital Stock and cash, if applicable, following such surrender and following the date of such conversion. In case fewer than all the shares represented by any such surrendered certificate are converted, a new certificate shall be issued at the expense of the Corporation representing the unconverted shares. If such notice of conversion (if required) shall have been duly given, then, notwithstanding that the certificates evidencing any shares of Series C Preference Stock subject to conversion shall not have been surrendered, the shares represented thereby subject to conversion shall be deemed no longer outstanding, dividends with respect to the shares subject to conversion shall cease to accrue after the date fixed for conversion and all rights with respect to the shares subject to conversion shall forthwith after such date cease and terminate, except for the right of the holders to receive the shares of Capital Stock and/or any applicable cash amounts without interest upon surrender of their certificates therefor; provided that if on the date fixed for conversion shares of Capital Stock and cash, if applicable, necessary for the conversion shall have been deposited by the Corporation in trust for the account of the holders of the shares so to be converted (and so as to be and continue to be available therefor) as provided above, then the holder or holders of such shares of Series C Preference Stock so converted shall look only to such bank or trust company for delivery of shares of Capital Stock and cash, if applicable, unless and until such shares of Capital Stock and cash are repaid and released to the Corporation. If fewer than all the outstanding shares of Series C Preference Stock are to be converted at the option of the Corporation, shares to be converted shall be selected by the Corporation from outstanding shares of Series C Preference Stock by lot or pro rata (as nearly as may be) or by any other method determined by the Board of Directors of the Corporation in its sole discretion to be appropriate and fair to the holders of Series C Preference Stock. (d) Voting Rights. (i) In addition to any voting rights to which the holders of shares of Series C Preference Stock shall be entitled pursuant to any other provision of the Certificate of Incorporation or applicable law, each outstanding share of Series C Preference Stock is entitled to vote on all matters submitted to a vote of shareholders of the Corporation, each holder of shares of Series C Preference Stock to have the number of votes equal to the product of the number of shares of Series C Preference Stock owned by such holder multiplied by the Common Equivalent Rate in effect on the record date for determining the shareholders of the Corporation entitled to vote. The Series C Preference Stock and the Capital Stock shall vote as a single class on all matters submitted to a vote of shareholders of the Corporation. (ii) In addition to the voting rights set forth in Subsection E(d)(i), whenever, at any time, Preferential Dividends payable on the Series C Preference Stock shall be in arrears with respect to six (6) or more Preferential Dividend Payment Dates, whether or not consecutive, the holders of shares of Series C Preference Stock shall have the exclusive right, voting separately as a class with holders of shares of any one or more other series of Series Preference Stock and/or any other class or series of shares ranking on a parity with shares of Series C Preference Stock either as to dividends or on the distribution of assets upon Liquidation and upon which like voting rights have been conferred and are exercisable, to elect two directors of the Corporation at the Corporation's next annual meeting of shareholders and at each subsequent annual meeting of shareholders until such right is terminated as provided in this Subsection E(d)(ii). At elections for such directors, each holder of shares of Series C Preference Stock shall be entitled to the number of votes equal to the product of the number of shares of Series C Preference Stock owned by such holder multiplied by the Common Equivalent Rate in effect on the record date for determining the shareholders of the Corporation entitled to vote (the holders of shares of any other series of Series Preference Stock and/or other class or series of shares ranking on such a parity being entitled to such number of votes, if any, for each share of stock held as may be applicable to them). Upon the vesting of such voting right in the holders of shares of Series C Preference Stock, the maximum authorized number of members of the Board of Directors shall automatically be increased by two and the two vacancies so created shall be filled by vote of the holders of shares of Series C Preference Stock (with the holders of shares of any one or more other class or series of shares ranking on such a parity) as set forth herein. The right of the holders of shares of Series C Preference Stock, voting separately as a class with the holders of shares of any one or more other series of Series Preference Stock and/or other class or series of shares ranking on such a parity, to elect members of the Board of Directors of the Corporation as aforesaid shall continue until such time as all dividends accumulated on shares of Series C Preference Stock shall have been paid or deposited for payment in full, at which time such right shall terminate, except as by law expressly provided, subject to revesting in the event of each and every subsequent default of the character above mentioned. Upon any termination of the right of the holders of Series C Preference Stock and, if applicable, the holders of shares of any one or more other series of Series Preference Stock and/or other class or series of shares ranking on such a parity to vote as a class for directors as herein provided, the term of office of all directors then in office elected by shares of Series C Preference Stock and such other series voting as a class shall terminate immediately. If the office of any director elected by the holders of shares of Series C Preference Stock and, if applicable, the holders of shares of any one or more other series of Series Preference Stock and/or other class or series of shares on such a parity, voting as a class, becomes vacant by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, the remaining director elected by the holders of shares of Series C Preference Stock and, if applicable, the holders of shares of any one or more other series of Series Preference Stock and/or other class or series of shares ranking on such a parity, voting as a class, may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. Whenever the special voting powers vested in the holders of shares of Series C Preference Stock and the holders of shares of any one or more other series of Series Preference Stock and/or other class or series of shares ranking on such a parity to vote as a class for directors as provided in this Subsection E(d)(ii) shall have expired, the number of directors shall become such number as may be provided for in the By-Laws, or resolution of the Board of Directors thereunder, irrespective of any increase made pursuant to the provisions of this Subsection E(d)(ii). (e) Increase in Shares. The number of shares of Series C Preference Stock may, to the extent of the Corporation's authorized and unissued Series Preference Stock, be increased by further resolution duly adopted by the Board of Directors and the filing of an amendment to the Certificate of Incorporation of the Corporation. (f) Exclusive Rights. Each holder of shares of Series C Preference Stock shall hold such Series C Preference Stock subject to the right of the Corporation to effect a conversion in accordance with the provisions of Subsection E(c) hereof and, in the event of such a conversion shall have the right to receive, as full payment, discharge and satisfaction of the obligations of the Corporation with respect to such Series C Preference Stock, only those shares of Capital Stock and cash, if applicable, delivered as provided in accordance with Subsection E(c) hereof. SECTION V The number of directors constituting the Corporation's current Board of Directors is nine (9). The names and business office addresses of the persons currently serving as said directors are set forth below: [CAPTION] Name Address Hugh F. Culverhouse, Culverhouse, Story & Botts 1408 North Westshore Blvd. Tampa, Florida Carl H. Lindner 250 East Fifth Street Cincinnati, Ohio Keith E. Lindner 250 East Fifth Street Cincinnati, Ohio S. Craig Lindner 250 East Fifth Street Cincinnati, Ohio Fred J. Runk 250 East Fifth Street Cincinnati, Ohio Jean H. Sisco Sisco Associates 1250 24th Street, N.W. Washington, D.C. William W. Verity Compression Engineering 5623 West 74th Street Indianapolis, Indiana Oliver W. Waddell Star Bank Center 425 Walnut Street Cincinnati, Ohio Ronald L. Walker 250 East Fifth Street Cincinnati, Ohio
SECTION VI Any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (whether or not by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership or joint venture, trust or other enterprise, shall be entitled to be indemnified by the Corporation to the full extent now or hereafter permitted by law against reasonable costs, disbursements and counsel fees and amounts paid or incurred in satisfaction of settlements, judgments, fines and penalties incurred by him in connection with such action, suit or proceeding. Such right of indemnification shall continue as to a person who has ceased to be a director, officer, employee, trustee or agent and shall inure to the benefit of the heirs, executor or administrator of such a person. The indemnification provided by this Section VI shall not exclude any other rights to which any such person may otherwise be entitled by agreement, vote of shareholders or otherwise. SECTION VII (1) The number of directors at any time may be increased or decreased by vote of the Board of Directors and in case of any such increase the Board of Directors shall have power to elect such additional directors to hold office until the next meeting of shareholders or until their successors shall be elected. (2) The Board of Directors, by the affirmative vote of a majority of the directors in office, may remove a director or directors for cause where, in the judgment of such majority, the continuation of the director or directors in office would be harmful to the Corporation and may suspend the director or directors for a reasonable period pending final determination that cause exists for such removal. SECTION VIII To the fullest extent permitted by the New Jersey Business Corporation Act as the same exists or may hereafter be amended, an officer or a director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of any duty, except that nothing contained herein shall relieve an officer or a director from liability for breach of a duty based upon an act or omission (a) in breach of such person's duty of loyalty to the Corporation or its shareholders, (b) not in good faith or involving a knowing violation of law, or (c) resulting in receipt by such person of an improper personal benefit. Any amendment or modification of the foregoing provisions of this Section shall not adversely affect any right or protection of an officer or a director of the Corporation existing at the time of such amendment or modification, and such right or protection shall continue as to a person who has ceased to be an officer or a director and shall inure to the benefit of the heirs, executor and administrators of such a person. IN WITNESS WHEREOF, CHIQUITA BRANDS INTERNATIONAL, INC. has made this Certificate under the signature of its President this 11th day of 1994. CHIQUITA BRANDS INTERNATIONAL, INC. By: /s/ Keith E. Lindner Title: President EX-10.C 3 CHIQUITA BRANDS INTERNATIONAL, INC. 1986 STOCK OPTION AND INCENTIVE PLAN (as amended and restated March 25, 1992 and further amended by the Board of Directors on February 9, 1994) CHIQUITA BRANDS INTERNATIONAL, INC. 1986 STOCK OPTION AND INCENTIVE PLAN T A B L E O F C O N T E N T S I. OBJECTIVES 1 II. DEFINITIONS 1 III. ADMINISTRATION 3 3.1 The Committee 3 3.2 Awards 3 3.3 Guidelines 4 3.4 Delegation of Authority 4 3.5 Decisions Final 4 IV. SHARES SUBJECT TO PLAN 4 4.1 Shares 4 4.2 Adjustment Provisions 4 4.3 Dissolution or Liquidation 5 V. EFFECTIVE DATE OF AMENDED PLAN 5 VI. STOCK OPTIONS 5 6.1 Grants 5 6.2 Incentive Stock Options 5 6.3 Replacement Options 5 6.4 Terms of Options 6 6.5 Award of Options to Non-Employee Directors 7 VII. STOCK APPRECIATION RIGHTS 8 7.1 Grant 8 7.2 Term 8 7.3 Exercise 8 7.4 Payment 8 7.5 Non-Transferability and Termination 8 VIII.RESTRICTED AND UNRESTRICTED STOCK AWARDS 9 8.1 Grants of Restricted Stock Awards 9 8.2 Terms and Conditions of Restricted Awards 9 8.3 Unrestricted Stock Awards 9 IX. PERFORMANCE AWARDS 9 9.1 Performance Awards 9 9.2 Terms and Conditions of Performance Awards 10 X. NON-TRANSFERABILITY OF AWARDS 10 XI. TERMINATION OF AWARDS 10 11.1 Termination of Awards 10 11.2 Acceleration of Vesting and Extension of Exercise Period Upon Termination 11 XII. TERMINATION OR AMENDMENT OF THIS PLAN 11 XIII.GENERAL PROVISIONS 11 13.1 No Right to Continued Employment 11 13.2 Other Plans 11 13.3 Withholding of Taxes 11 13.4 Reimbursement of Taxes 12 13.5 Governing Law 12 13.6 Liability 12 CHIQUITA BRANDS INTERNATIONAL, INC. 1986 STOCK OPTION AND INCENTIVE PLAN (as amended and restated February 9, 1994) SECTION I. OBJECTIVES The objectives of this 1986 Stock Option and Incentive Plan (the "Plan"), as amended and restated, are to enable Chiquita Brands International, Inc. (the "Company") to compete successfully in retaining and attracting key employees of outstanding ability, to stimulate the efforts of such employees toward the Company's objectives and to encourage the identification of their interests with those of the Company's shareholders. SECTION II. DEFINITIONS For purposes of this Plan, the following terms shall have the following meanings: 2.1 "Award" means any form of Stock Option, Stock Appreciation Right, Restricted Stock Award, Unrestricted Stock Award or Performance Award granted under this Plan. 2.2 "Award Agreement" means a written agreement setting forth the terms of an Award. 2.3 "Award Date" or "Grant Date" means the date designated by the Committee as the date upon which an Award is granted. 2.4 "Award Period" or "Term" means the period beginning on an Award Date and ending on the expiration date of such Award. 2.5 "Board" means the Board of Directors of the Company. 2.6 "Code" means the Internal Revenue Code of 1986, as amended, or any successor legislation. Reference to any particular section of the Code includes any successor amendments or replacements of such section. 2.7 "Committee" means the committee appointed by the Board and consisting of two or more Directors, none of whom shall be eligible to receive any Award pursuant to this Plan except as provided in Subsection 6.5. Members of the Committee must qualify as Disinterested Persons within the meaning of Rule 16b-3. 2.8 "Common Stock" means the Company's Capital Stock, $.33 par value. 2.9 "Disability" means a "permanent and total disability" within the meaning of Section 22(e)(3) of the Code. 2.10 "Disinterested Person" means a member of the Board who was not, during the year prior to being appointed to the Committee, or during the period of service as an administrator of this Plan, granted or awarded equity securities pursuant to the Plan or pursuant to any other plan of the Company, except to the extent consistent with the disinterested plan administration requirements under Rule 16b-3. 2.11 "Eligible Employee" means any person (other than one who receives retirement benefits, consulting fees, honorariums, and the like from the Company) (i) who performs services for the Company or a Subsidiary, including any individual who is an officer or director of the Company or a Subsidiary; and (ii) is compensated on a regular basis by the Company or a Subsidiary. Directors who are not full-time employees of the Company or a Subsidiary are not eligible to receive Awards under this Plan, except as set forth in Subsection 6.5. Eligibility under this Plan shall be determined by the Committee. 2.12 "Fair Market Value" means, as of any date, the average of the highest and lowest quoted selling prices of a Share as reported on the New York Stock Exchange Composite Transactions list (or such other consolidated transaction reporting system on which the Shares are primarily traded), or if the Shares were not traded on such day, then the next preceding day on which the Shares were traded, all as reported by such source as the Committee may select. If the Shares are not traded on a national securities exchange or other market system, Fair Market Value shall be set under procedures established by the Committee. 2.13 "Incentive Stock Option" means any Stock Option awarded under Section VI of this Plan intended to be and designated as an "Incentive Stock Option" within the meaning of Section 422 of the Code or any successor provision. 2.14 "Non-Qualified Stock Option" means any Stock Option awarded under Section VI of this Plan that is not an Incentive Stock Option. 2.15 "Officer" means a person who is considered to be an officer of the Company under Rule 16a-1(f). 2.16 "Option Price" or "Exercise Price" means the price per share at which Common Stock may be purchased upon the exercise of an Option or an Award. 2.17 "Participant" means an Eligible Employee to whom an Award has been made pursuant to this Plan. 2.18 "Replacement Option" means a Non-Qualified Stock Option granted pursuant to Subsection 6.3, upon the exercise of a Stock Option granted pursuant to this Plan where the Option Price is paid with previously owned shares of Common Stock. 2.19 "Restricted Stock" means those shares of Common Stock issued pursuant to a Restricted Stock Award which are subject to the restrictions set forth in the related Award Agreement. 2.20 "Restricted Stock Award" means an award of a fixed number of Shares to a Participant which is subject to forfeiture provisions and other conditions set forth in the Award Agreement. 2.21 "Retirement" means any termination of employment or service on the Board (other than by death or Disability) by an employee or a director who is at least 65 years of age or 55 years of age with at least 10 years of employment with or service on the Board of the Company or a Subsidiary. 2.22 "Rule 16b-3" and "Rule 16a-1(f)" mean Securities and Exchange Commission Regulations Section 240.16b-3 and Section 240.16a-1(f) or any corresponding successor regulations. 2.23 "Share" means one share of the Company's Common Stock. 2.24 "Stock Appreciation Right" or "SAR" means the right to receive, for each unit of the SAR, cash and/or shares of Common Stock equal in value to the excess of the Fair Market Value of one Share on the date of exercise of the SAR over the reference price per share of Common Stock established on the date the SAR was granted. 2.25 "Stock Option" or "Option" means the right to purchase shares of Common Stock (including a Replacement Option) granted pursuant to Section VI of this Plan. 2.26 "Subsidiary" means any corporation, partnership, joint venture, or other entity (i) of which the Company owns or controls, directly or indirectly, 25% or more of the outstanding voting stock (or comparable equity participation and voting power) or (ii) which the Company otherwise controls (by contract or any other means); except that when the term "Subsidiary" is used in the context of an award of an Incentive Stock Option, the term shall have the same meaning given to it in the Code. "Control" means the power to direct or cause the direction of the management and policies of a corporation or other entity. 2.27 "Transfer" means alienation, attachment, sale, assignment, pledge, encumbrance, charge or other disposition; and the terms "Transferred" or "Transferable" have corresponding meanings. SECTION III. ADMINISTRATION 3.1 The Committee. This Plan shall be administered and interpreted by the Committee. 3.2 Awards. The Committee shall have full authority to grant, pursuant to the terms of this Plan, to Eligible Employees: (i) Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, (iv) Unrestricted Stock and (v) Performance Awards. In particular, the Committee shall have the authority: (a) to select the Eligible Employees to whom Awards may be granted; (b) to determine the types and combinations of Awards to be granted to Eligible Employees; (c) to determine the number of Shares or monetary units which may be subject to each Award; (d) to determine the terms and conditions, not inconsistent with the terms of this Plan, of any Award (including, but not limited to, any restriction or limitation on transfer, any vesting schedule or acceleration, or any forfeiture provisions or waiver, regarding any Award) and the related Shares, based on such factors as the Committee shall determine; and (e) to modify or waive any restrictions or limitations contained in, and grant extensions to the terms of or accelerate the vestings of, any outstanding Awards as long as such modifications, waivers, extensions or accelerations are not inconsistent with the terms of this Plan, but no such changes shall impair the rights of any Participant without his or her consent. 3.3 Guidelines. The Committee shall have the authority to adopt, alter and repeal administrative rules, guidelines and practices governing this Plan and perform all acts, including the delegation of its administrative responsibilities, as it deems advisable; to construe and interpret the terms and provisions of this Plan and any Award issued under this Plan; and to otherwise supervise the administration of this Plan. The Committee may correct any defect, supply any omission or reconcile any inconsistency in this Plan or in any related Award Agreement in the manner and to the extent it deems necessary to carry this Plan into effect. 3.4 Delegation of Authority. The Committee may delegate to one or more Officers of the Company the authority of the Committee under Section 3.2 (except in respect of Awards to Officers) and may delegate its administrative duties to one or more individuals who are Officers or employees of the Company. 3.5 Decisions Final. Any action, decision, interpretation or determination by or at the direction of the Committee concerning the application or administration of this Plan shall be final and binding upon all persons and need not be uniform with respect to its determination of recipients, amount, timing, form, terms or provisions of Awards. SECTION IV. SHARES SUBJECT TO PLAN 4.1 Shares. Subject to adjustment as provided in Subsection 4.2, the aggregate number of Shares which may be issued under this Plan shall not exceed fifteen million (15,000,000) Shares. If any Award granted under this Plan shall expire, terminate or be canceled for any reason without having been exercised in full, the number of unacquired Shares subject to such Award shall again be available for future grants; provided, however, that the reuse of such Shares is not prohibited under Rule 16b-3. 4.2 Adjustment Provisions. (a) If the Company shall at any time change the number of issued Shares without new consideration to the Company (such as by stock dividend, stock split, recapitalization, reorganization, exchange of shares, liquidation, combination or other change in corporate structure affecting the Shares) or make a distribution of cash or property which has a substantial impact on the value of issued Shares, the total number of Shares reserved for issuance under the Plan shall be appropriately adjusted and the number of Shares covered by each outstanding Award and the reference price or Fair Market Value for each outstanding Award shall be adjusted so that the aggregate consideration payable to the Company and the value of each such Award shall not be changed. (b) Notwithstanding any other provision of the Plan, and without affecting the number of Shares reserved or available hereunder, the Committee may authorize the issuance, continuation or assumption of Awards or provide for other equitable adjustments after changes in the Shares resulting from any merger, consolidation, sale of assets, acquisition of property or stock, recapitalization, reorganization or similar occurrence in which the Company is the continuing or surviving corporation, upon such terms and conditions as it may deem equitable and appropriate. 4.3 Dissolution or Liquidation. In the event of the dissolution or liquidation of the Company or any merger, consolidation or combination in which the Company is not the surviving corporation or in which the outstanding Shares of the Company are converted into cash, other securities or other property, each outstanding Award shall terminate as of a date fixed by the Committee, provided that not less than 20 days' written notice of the date of expiration shall be given to each holder of an Award and each such holder shall have the right during such period following notice to exercise the Award as to all or any part of the Shares for which it is exercisable at the time of such notice. SECTION V. EFFECTIVE DATE OF AMENDED PLAN This Plan was amended and restated by the Board on March 25, 1992 and shall become effective, as amended, upon its approval by the holders of a majority of the shares of Common Stock represented, in person or by proxy, at the Company's Annual Meeting of Shareholders on May 14, 1992. This Plan shall continue in effect until December 31, 2015 unless terminated sooner by the Board pursuant to Section XII. SECTION VI. STOCK OPTIONS 6.1 Grants. Stock options may be granted alone or in addition to other Awards granted under this Plan. Each Option granted shall be designated as either a Non- Qualified Stock Option or an Incentive Stock Option and in each case such Option may or may not include Stock Appreciation Rights. One or more Stock Options and/or Stock Appreciation Rights may be granted to any Eligible Employee, except that no person shall receive during any twelve month period Stock Options and Stock Appreciation Rights covering more than 300,000 shares of Common Stock. 6.2 Incentive Stock Options. (a) Award Agreement. Any Award Agreement relating to an Incentive Stock Option shall contain such terms and conditions as are required for the Option to be an "incentive stock option" as that term is defined in Section 422 of the Code. (b) Ten Percent Shareholder. An Incentive Stock Option shall not be awarded to any person who, at the time of the Award, owns Shares possessing more than 10% of the total combined voting power of all classes of stock of the Company or its Subsidiaries. (c) Qualification under the Code. Notwithstanding anything in this Plan to the contrary, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under this Plan be exercised, so as to disqualify this Plan under Section 422 of the Code, or, without the consent of the Participants affected, to disqualify any Incentive Stock Option under Section 422 of the Code. 6.3 Replacement Options. The Committee may provide either at the time of grant or subsequently that an Option shall include the right to acquire a Replacement Option upon the exercise of such Option (in whole or in part) prior to Participant's termination of employment if the payment of the Option Price is paid in Shares. In addition to any other terms and conditions the Committee deems appropriate, the Replacement Option shall be subject to the following terms: (i) the number of Shares subject to the Replacement Option shall not exceed the number of whole Shares used to satisfy the Option Price of the original Option and the number of whole Shares, if any, withheld by the Company as payment for withholding taxes in accordance with Subsection 13.3; (ii) the Replacement Option Grant Date will be the date of the exercise of the original Option; (iii) the Option Price per share shall be the Fair Market Value of a Share on the Replacement Option Grant Date; (iv) the Replacement Option shall be exercisable no earlier than one year after the Replacement Option Grant Date; (v) the Term of the Replacement Option will not extend beyond the Term of the original Option; and (vi) the Replacement Option shall be a Non-Qualified Stock Option and shall otherwise meet all conditions of this Subsection 6.3. The Committee may without the consent of the Participant rescind the right to receive a Replacement Option at any time prior to an Option being exercised. 6.4 Terms of Options. Except as otherwise required by Subsections 6.2, 6.3 and 6.5, Options granted under this Plan shall be subject to the following terms and conditions and shall be in such form and contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem desirable: (a) Option Price. The Option Price per share of Common Stock purchasable under a Stock Option shall be determined by the Committee at the time of grant, except that no Incentive Stock Option may be granted for an Option Price less than 100% of Fair Market Value on the Grant Date. (b) Option Term. The Term of each Stock Option shall be fixed by the Committee, but no Incentive Stock Option shall be exercisable more than ten years after its Award Date, and no Non-Qualified Stock Option shall be exercisable more than 20 years after its Award Date. (c) Exercisability. Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Committee; provided, however, that Options may not be exercised as to less than 100 Shares at any time unless the number exercised is the total number available for exercise at that time under the terms of the Option. (d) Method of Exercise. Stock Options may be exercised in whole or in part at any time during the Option Term, by giving written notice of exercise to the Company specifying the number of Shares to be purchased. Such notice shall be accompanied by payment in full of the Option Price in such form as the Committee may accept. If and to the extent determined by the Committee at or after grant, payment in full or in part may also be made in the form of Common Stock owned by the Participant for at least six months prior to exercise or by reduction in the number of Shares issuable upon exercise based, in each case, on the Fair Market Value of the Common Stock on the payment date. (e) Non-Transferability of Options. Stock Options shall be Transferable only to the extent provided in Section X of this Plan. (f) Termination. Stock Options shall terminate in accordance with Section XI of this Plan. (g) Buyout and Settlement Provisions. The Committee may at any time offer to buy out an Option previously granted, based on such terms and conditions as the Committee shall establish. The Committee may also substitute new Stock Options for previously granted Stock Options having higher Option Prices than the new Stock Options being substituted therefor. 6.5 Award of Options to Non-Employee Directors. (a) Grants. The Company shall make the following grants of Stock Options to non-employee directors under this Plan: (i) On the date on which a person who is not a full-time employee of the Company or a Subsidiary first becomes a director of the Company (a "non- employee director"), whether by election or appointment, that non-employee director shall automatically be granted Non-Qualified Stock Options for 10,000 Shares. (ii) Beginning in December of 1994 and each year thereafter, each then-serving non- employee director who has served on the Board at least six months shall automatically receive a grant of Non-Qualified Stock Options for 10,000 Shares. The award shall be made on the same date in December on which the Committee decides the total number of stock options to be granted to employees in connection with the Company's annual total compensation review which is conducted each year in December. (b) Terms and Conditions of Options Granted to Non- Employee Directors. (i) Term. The Term of all Options shall be 20 years from the Award Date of the Option. (ii) Option Price. The Option Price of all Options shall be the Fair Market Value of a Share on the Award Date. (iii) Vesting. All Options shall vest over a ten year period with 9% of the Option Shares immediately exercisable on the Award Date and an additional 9% exercisable on each anniversary of the Award Date thereafter until the tenth anniversary when the remaining 10% of the Option Shares shall be exercisable. (iv) Method of Exercise. All Options shall be exercisable in the manner provided in Subsection 6.4(d) except that, without further action by the Committee, non-employee directors may make payment of the Option Price by the delivery of Shares owned by the director for at least six months prior to exercise or by a reduction in the number of Shares issuable upon such exercise, and such directors may also use the provisions of Subsection 13.3. (v) Non-transferability and Termination. All Options shall be Transferable only to the extent provided in Section X of this Plan and shall terminate in accordance with Section XI of this Plan, except that the timing provisions of Subsections 11.1(b) and 11.1(c) may not be varied by Committee determination. (c) Amendment. Notwithstanding any other provision of this Plan, the provisions of this Subsection 6.5 may not be amended by the Board more frequently than once every six months other than to comply with changes in the Code or the rules thereunder. SECTION VII. STOCK APPRECIATION RIGHTS 7.1 Grant. A Stock Appreciation Right may be granted either with or without reference to all or any part of a Stock Option. A "Tandem SAR" means an SAR granted with reference to a Stock Option (the "Reference Option"). A "Non-Tandem SAR" means an SAR granted without reference to a Stock Option. If the Reference Option is a Non-Qualified Stock Option, a Tandem SAR may be granted at or after the date of the Reference Option; if the Reference Option is an Incentive Stock Option, the Grant Date of a Tandem SAR must be the same as the Grant Date of the Reference Option. Any SAR shall have such terms and conditions, not inconsistent with this Plan, as are established by the Committee in connection with the Award. 7.2 Term. A Tandem SAR shall terminate and no longer be exercisable upon the termination of its Reference Option. A Non-Tandem SAR may have a term no longer than 20 years from its Grant Date. 7.3 Exercise. A Tandem SAR may only be exercisable at the times and, in whole or in part, to the extent that its Reference Option is exercisable. The exercise of a Tandem SAR shall automatically result in the surrender of the applicable portion of its Reference Option. A Non- Tandem SAR shall be exercisable in whole or in part as provided in its Award Agreement. Written notice of any exercise must be given in the form prescribed by the Committee. 7.4 Payment. For purposes of payment of an SAR, the reference price per Share shall be the Option Price of the Reference Option in the case of a Tandem SAR and shall be the Fair Market Value of a Share on the Grant Date in the case of a Non-Tandem SAR. The Committee shall determine the form of payment. 7.5 Non-Transferability and Termination. Stock Appreciation Rights shall be Transferable only to the extent provided in Section X of this Plan and shall terminate in accordance with Section XI of this Plan. SECTION VIII. RESTRICTED AND UNRESTRICTED STOCK AWARDS 8.1 Grants of Restricted Stock Awards. The Committee may, in its discretion, grant one or more Restricted Stock Awards to any Eligible Employee. Each Restricted Stock Award shall specify the number of Shares to be issued to the Participant, the date of such issuance, the price, if any, to be paid for such Shares by the Participant and the restrictions imposed on such Shares. The Committee may grant Awards of Restricted Stock subject to the attainment of specified performance goals, continued employment or such other limitations or restrictions as the Committee may determine. 8.2 Terms and Conditions of Restricted Awards. Restricted Stock Awards shall be subject to the following provisions: (a) Issuance of Shares. Shares of Restricted Stock may be issued immediately upon grant or upon vesting as determined by the Committee. (b) Stock Powers and Custody. If shares of Restricted Stock are issued immediately upon grant, the Committee may require the Participant to deliver a duly signed stock power, endorsed in blank, relating to the Restricted Stock covered by such an Award. The Committee may also require that the stock certificates evidencing such shares be held in custody by the Company until the restrictions on them shall have lapsed. (c) Shareholder Rights. Unless otherwise determined by the Committee at the time of grant, Participants receiving Restricted Stock Awards shall not be entitled to dividend or voting rights for the Restricted Shares until they are fully vested. 8.3 Unrestricted Stock Awards. The Committee may make awards of unrestricted Common Stock to key Eligible Employees in recognition of outstanding achievements by such employees. Unrestricted Shares issued on a bonus basis under this Subsection 8.3 may be issued for no cash consideration. Each certificate for unrestricted Common Stock shall be registered in the name of the Participant and delivered immediately to the Participant. SECTION IX PERFORMANCE AWARDS 9.1 Performance Awards. (a) Grant. The Committee may, in its discretion, grant Performance Awards to Eligible Employees. A Performance Award shall consist of the right to receive either (i) Common Stock or cash of an equivalent value, or a combination of both, at the end of a specified Performance Period (defined below) or (ii) a fixed dollar amount payable in cash or Shares, or a combination of both, at the end of a specified Performance Period. The Committee shall determine the Eligible Employees to whom and the time or times at which Performance Awards shall be granted, the number of Shares or the amount of cash to be awarded to any person, the duration of the period (the "Performance Period") during which, and the conditions under which, a Participant's Performance Award will vest, and the other terms and conditions of the Performance Award in addition to those set forth in Subsection 9.2. (b) Criteria for Award. The Committee may condition the grant or vesting of a Performance Award upon the attainment of specified performance goals; the appreciation in the Fair Market Value, book value or other measure of value of the Common Stock; the performance of the Company based on earnings or cash flow; or such other factors or criteria as the Committee shall determine. 9.2 Terms and Conditions of Performance Awards. Performance Awards granted pursuant to this Section IX shall be subject to the following terms and conditions: (a) Dividends. Unless otherwise determined by the Committee at the time of the grant of the Award, amounts equal to any dividends declared during the Performance Period with respect to any Shares covered by a Performance Award will not be paid to the Participant. (b) Payment. Subject to the provisions of the Award Agreement and this Plan, at the expiration of the Performance Period, share certificates, cash or both (as the Committee may determine) shall be delivered to the Participant, or his or her legal representative or guardian, in a number or an amount equal to the vested portion of the Performance Award. (c) Non-Transferability. Performance Awards shall not be Transferable except in accordance with the provisions of Section X of this Plan. (d) Termination of Employment. Subject to the applicable provisions of the Award Agreement and this Plan, upon termination of a Participant's employment with the Company or a Subsidiary for any reason during the Performance Period for a given Award, the Performance Award in question will vest or be forfeited in accordance with the terms and conditions established by the Committee. SECTION X NON-TRANSFERABILITY OF AWARDS No Award or benefit payable under this Plan shall be Transferable by the Participant during his or her lifetime and may not be assigned, exchanged, pledged, transferred or otherwise encumbered or disposed of except by a domestic relations order pursuant to Section 414(p)(1)(B) of the Code, or by will or the laws of descent and distribution. Awards shall be exercisable during a Participant's lifetime only by the Participant or by the Participant's guardian or legal representative. SECTION XI. TERMINATION OF AWARDS 11.1 All Awards issued under this Plan shall terminate as follows: (a) Termination at Expiration of Term. During any period of continuous employment with the Company or a Subsidiary, an Award will be terminated only if it is fully exercised or if it has expired by its terms. For purposes of this Plan, any leave of absence approved by the Company shall not be deemed to be a termination of employment. (b) Termination by Death, Disability or Retirement. If a Participant's employment by the Company or a Subsidiary terminates by reason of death, Disability or Retirement, any Award held by such Participant, unless otherwise determined by the Committee at grant, shall be fully vested and may thereafter be exercised by the Participant or by the Participant's beneficiary or legal representative, for a period of one year (or such longer period as the Committee may specify at or after grant) from the date of such death, Disability or Retirement or until the expiration of the stated term of such Award, whichever period is shorter. (c) Other Termination. Unless otherwise determined by the Committee at or after grant, if a Participant's employment by the Company or a Subsidiary terminates for any reason other than death, Disability or Retirement, the Award will terminate on the earlier to occur of the stated expiration date or 90 calendar days after termination of employment. If a Participant dies during the 90 day period following termination of employment, any unexercised Award held by the Participant shall be exercisable, to the full extent that such Award was exercisable at the time of death, for a period of 90 calendar days from the date of death or until the expiration of the stated term of the Award, whichever occurs first. 11.2 Acceleration of Vesting and Extension of Exercise Period Upon Termination. (a) Notwithstanding anything contained in this Section XI, upon the termination of employment of a Participant who is not an Officer or Director of the Company, for reasons other than death, Disability or Retirement, either the Committee or the President of the Company may, in its or his sole discretion, accelerate the vesting of all or part of any Awards held by such terminated Participant so that such Awards are fully or partially exercisable as of the date of termination, and may also extend the permitted exercise period of such Awards for up to five years from the date of termination, but in no event longer than the original expiration date of such Award. In the case of a terminated Participant who is an Officer, such discretion shall be exercised, if at all, only by the Committee. (b) Except as provided in Subsection 4.2, in no event will the continuation of the exercisability of an Award beyond the date of termination of employment allow the Eligible Employee, or his or her beneficiaries or heirs, to accrue additional rights under the Plan, or to purchase more Shares through the exercise of an Award than could have been purchased on the date that employment was terminated. SECTION XII TERMINATION OR AMENDMENT OF THIS PLAN 12.1 Termination or Amendment. The Board may at any time, amend, in whole or in part, any or all of the provisions of this Plan, or suspend or terminate it entirely; provided, however, that, unless otherwise required by law, the rights of a Participant with respect to any Awards granted prior to such amendment, suspension or termination may not be impaired without the consent of such Participant; and, provided further, no amendment may be made, with or without shareholder approval, which would cause this Plan to lose its exemption under Rule 16b-3 and no amendment may be made without shareholder approval which would increase the number of shares available under this Plan. SECTION XIII GENERAL PROVISIONS 13.1 No Right to Continued Employment. Neither the establishment of the Plan nor the granting of any Award hereunder shall confer upon any Participant any right to continue in the employ of the Company or any Subsidiary or interfere in any way with the right of the Company or any Subsidiary to terminate such employment at any time. 13.2 Other Plans. In no event shall the value of, or income arising from, any Awards issued under this Plan be treated as compensation for purposes of any pension, profit sharing, life insurance, disability or other retirement or welfare benefit plan now maintained or hereafter adopted by the Company or any Subsidiary, unless such plan specifically provides to the contrary. 13.3 Withholding of Taxes. The Company shall have the right to deduct from any payment to be made pursuant to this Plan, or to otherwise require, prior to the issuance or delivery of any Shares or the payment of any cash to a Participant, payment by the Participant of any Federal, state, local or foreign taxes required by law to be withheld. The Committee may permit any such withholding obligation to be satisfied by reducing the number of Shares otherwise deliverable or by accepting the delivery of previously owned Shares. Any fraction of a Share required to satisfy such tax obligations shall be disregarded and the amount due shall be paid instead in cash by the Participant. 13.4 Reimbursement of Taxes. The Committee may provide in its discretion that the Company may reimburse a Participant for federal, state, local and foreign tax obligations incurred as a result of the grant or exercise of an Award issued under this Plan. 13.5 Governing Law. This Plan and actions taken in connection with it shall be governed by the laws of the State of New Jersey, without regard to the principles of conflict of laws. 13.6 Liability. No employee of the Company nor member of the Committee or the Board shall be liable for any action or determination taken or made in good faith with respect to the Plan or any Award granted hereunder and, to the fullest extent permitted by law, all employees and members shall be indemnified by the Company for any liability and expenses which may occur through any claim or cause of action arising under or in connection with this Plan or any Awards granted under this Plan. EX-11 4 EX-11 Exhibit 11 CHIQUITA BRANDS INTERNATIONAL, INC. COMPUTATION OF EARNINGS PER COMMON SHARE (In thousands, except per share amounts) (Unaudited) Quarter Ended Six Months Ended June 30, June 30, 1994 1993 1994 1993 A. Primary earnings (loss) per common share Income from continuing operations $30,945 $7,673 $66,479 $35,203 Dividends on Series A Preferred Stock (2,066) -- (3,100)-- Income from continuing operations available to common shares 28,879 7,673 63,379 35,203 Discontinued operations -- -- -- -- Income before extraordinary item 28,879 7,673 63,379 35,203 Extraordinary loss from prepayment of debt -- -- (22,840)-- Net income used to calculate primary earnings (loss) per share $28,879 $7,673 $40,539 $35,203 Shares used in calculation of per share data: Weighted average common and equivalent Series C preference shares outstanding 51,956 51,380 51,882 51,388 Dilutive effect of assumed exercise of certain stock options and warrants 1,055 171 1,212 341 Weighted average common shares used to calculate primary earnings (loss) per share 53,011 51,551 53,094 51,729 Primary earnings (loss) per common share: - Continuing operations $ .54 $ .15 $ 1.19 $ .68 - Discontinued operations -- -- -- -- - Extraordinary loss -- -- (.43) -- - Net income $ .54 $ .15 $ .76 $ .68 Exhibit 11 (continued) CHIQUITA BRANDS INTERNATIONAL, INC. COMPUTATION OF EARNINGS PER COMMON SHARE (In thousands, except per share amounts) (Unaudited) Quarter Ended Six Months Ended June 30, June 30, 1994 1993 1994 1993 B. Fully diluted earnings (loss) per common share Income from continuing operations available to common shares $28,879 $7,673 $63,379 $35,203 Add back dividends as a result of assumed conversion of Series A Preferred Stock 2,066 -- 3,100 -- Additional income as a result of assumed conversion of convertible debentures -- -- -- -- Income from continuing operations used to calculate fully diluted earnings (loss) per share 30,945 7,673 66,479 35,203 Discontinued operations -- -- -- -- Income before extraordinary item 30,945 7,673 66,479 35,203 Extraordinary loss from prepayment of debt -- -- (22,840)-- Net income used to calculate fully diluted earnings (loss) per share $30,945 $7,673 $43,639 $35,203 Shares used in calculation of per share data: Weighted average common shares used to calculate primary earnings (loss) per share 53,011 51,551 53,094 51,729 Additional shares resulting from assumed exercise of options and assumed conversions of Series A Preferred Stock and convertible subordinated debentures 7,566 -- 5,845 -- Weighted average common shares used to calculate fully diluted earnings (loss) per share 60,577 51,551 58,939 51,729 Fully diluted earnings (loss) per common share: - Continuing operations $ .51 $ .15 $ 1.13 $ .68 - Discontinued operations -- -- -- -- - Extraordinary loss -- -- (.39) -- - Net income $ .51 $ .15 $ .74 $ .68 EX-99 5 EX-99(C) Exhibit 99(c) CHIQUITA BRANDS INTERNATIONAL, INC. and THE FIFTH THIRD BANK, Trustee __________________________________ FIRST SUPPLEMENTAL INDENTURE Dated as of June 15, 1994 To INDENTURE Dated as of February 15, 1994 __________________________________ Amending the Indenture, dated as of February 15, 1994, as supplemented by a Board Resolution dated February 8, 1994, between Chiquita Brands International, Inc. and The Fifth Third Bank, as trustee, with respect to the 9-1/8% Senior Notes due 2004 issued by Chiquita Brands International, Inc. FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture") dated as of June 15, 1994 by and between Chiquita Brands International, Inc., a New Jersey corporation (the "Company"), and The Fifth Third Bank, an Ohio banking corporation, as trustee (the "Trustee"), with respect to the 9-1/8% Senior Notes due 2004 issued by the Company (the "Senior Notes"). RECITALS A. The Company and the Trustee are parties to an Indenture dated as of February 15, 1994, as supplemented by a Board Resolution dated February 8, 1994 (as so supplemented, the "Indenture"), pursuant to which the Company has issued the Senior Notes in the aggregate principal amount of $175,000,000, all of which Senior Notes are Outstanding as of the date hereof. The Board Resolution sets forth the terms of the Senior Notes, including certain definitions and covenants relating thereto. B. The Company has obtained the consent of certain Holders of Senior Notes to an amendment (the "Amendment") to the definition of "Permitted Indebtedness" contained in the Indenture. C. Section 902 of the Indenture provides that the Company may, when authorized by a Board Resolution and with the consent of Holders of more than 50% in aggregate principal amount of Outstanding Debt Securities of any series of Debt Securities then Outstanding affected thereby, effect the Amendment. D. The Senior Notes are the sole series of Debt Securities affected by the Amendment. E. All of the Senior Notes were Outstanding as of the record date for determining Holders entitled to consent to the Amendment. Consents to the Amendment have been received by the Trustee from Holders of more than $87,500,000 in aggregate principal amount of Outstanding Senior Notes, which represents an amount in excess of 50% in aggregate principal amount of Outstanding Senior Notes. F. The execution and delivery of this First Supplemental Indenture have been duly authorized by a Company Board Resolution. G. The purpose of this First Supplemental Indenture is to effect the Amendment with respect to the Senior Notes. All conditions and requirements necessary to make this First Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in accordance with its terms and for the purposes herein expressed, have been performed and fulfilled. NOW, THEREFORE, it is agreed that the Indenture is amended with respect to the Senior Notes as follows from and after the date hereof: ARTICLE 1 AMENDMENT TO INDENTURE Section 1. The definition of "Permitted Indebtedness" is hereby amended to read as follows: "Permitted Indebtedness" means (i) Indebtedness of the Company or any Subsidiary outstanding on the date of the Indenture and, in the case of John Morrell & Co., additional Indebtedness incurred in an amount not in excess of any commitment under its $80 million credit facility which was unused on the date of the Indenture; (ii) the Senior Notes; (iii) Indebtedness of the Company not in excess of $250 million in principal amount outstanding at any time under revolving credit or similar bank facilities and any refinancings, replacements, renewals, extensions, substitutions, refundings, deferrals, restructurings, amendments, supplements or modifications of such Indebtedness; provided, however, that the proceeds of such Indebtedness referred to in this clause (iii) shall be invested in, or used in connection with, food-related businesses (other than the fresh or processed meat business); (iv) Indebtedness of a Subsidiary (including Acquired Indebtedness), which is non-recourse to the Company, the proceeds of which are or have been used for working capital purposes or for capital expenditures in food-related businesses (other than the fresh or processed meat business); (v) Indebtedness of (A) a Subsidiary borrowed from a lender located in any country producing tropical fruit and denominated in or measured by the currency of such country other than U.S. dollars, which Indebtedness is incurred for hedging purposes in the ordinary course of business consistent with past practice or (B) the Company or any other Subsidiary (in either case, other than for borrowed money) incurred in connection with Indebtedness of a Subsidiary referred to in clause (A) above which is (y) a guarantee of such Subsidiary Indebtedness, or (z) a reimbursement obligation relating to a letter of credit supporting such Subsidiary Indebtedness; (vi) Intercompany Debt Obligations; provided, however, that the obligations of the Company with respect to such Indebtedness shall be evidenced by an intercompany note and shall be subordinated in right of payment from and after such time as all Senior Notes issued and outstanding shall become due and payable (whether at Stated Maturity, by acceleration or otherwise) to the payment and performance of the Company's obligations under the Senior Notes; and (vii) additional Indebtedness of the Company (including Acquired Indebtedness) the aggregate principal amount of which outstanding at any time does not exceed 5% of Adjusted Consolidated Assets. ARTICLE 2 MISCELLANEOUS Section 2.1. Governing Law. This First Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. Section 2.2 Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Indenture. IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to be signed and acknowledged by their respective officers thereunto duly authorized as of the day and year first above written. CHIQUITA BRANDS INTERNATIONAL, INC. [Seal] BY: /s/ Steven G. Warshaw Title: Executive Vice President, Chief Administrative Officer Attest: and Chief Financial Officer /s/ Donna K. Leonard THE FIFTH THIRD BANK, Trustee [Seal] BY: /s/ Kerry R. Byrne Title: Vice President Attest: /s/ Brian J. Gardner -----END PRIVACY-ENHANCED MESSAGE-----