Article
IV of the Articles of Incorporation of the Corporation is hereby amended by
adding the following new subsection (F) which sets forth the terms of the
Corporation’s 8% Non-Cumulative Convertible Preferred Stock, Series
2009.
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F.
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Series 2009 Preferred
Stock.
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1.
Designation
.
The new series of
preferred stock created by this Article IV, Paragraph F shall be designed and
known as the “Series 2009 Preferred Stock.” Each share of Series 2009
Preferred Stock shall be identical in all respects to every other share of
Series 2009 Preferred Stock, will rank equally with Parity Stock, if any, and
will rank senior to Junior Stock with respect to the payment of dividends and
the distribution of assets in the event of any voluntary or involuntary
dissolution, winding-up and liquidation of the Corporation.
2.
Number of
Shares
. The authorized number of shares of Series 2009
Preferred Stock shall be 15,000, par value $1.00 per share, with a liquidation
preference of $1,000 per share. Such number may from time to time be
increased (but not in excess of the total number of authorized shares of
Preferred Stock) or decreased (but not below the number of shares of Series 2009
Preferred Stock then outstanding) by the Board of Directors. Shares
of Series 2009 Preferred Stock that are converted in accordance with the terms
hereof, purchased or otherwise acquired by the Corporation shall be cancelled
and shall revert to authorized but unissued shares of the Corporation’s
preferred stock undesignated as to series. The Corporation shall not
have the authority to issue fractional shares of Series 2009 Preferred
Stock.
3.
Definitions
. As
used herein with respect to Series 2009 Preferred Stock:
“Applicable
Conversion Price” at any given time means, for each share of Series 2009
Preferred Stock, the price equal to $1,000 divided by the Applicable Conversion
Ratio in effect at such time.
“Applicable
Conversion Ratio” means the number of shares of Common Stock to be received upon
the conversion of each share of Series 2009 Preferred Stock determined by
dividing $1,000 by $5.50, plus cash in lieu of fractional shares, subject to
adjustment as set forth herein.
“Business
Day” means each Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in Moorefield, West Virginia are not authorized or obligated by
law, regulation or executive order to close.
“Capital
Stock” of any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) equity of such Person, including any preferred stock,
excluding any debt securities convertible into such equity.
“Closing
Price” of the Common Stock on any date of determination means:
(a) the
closing sale price of the Common Stock (or, if no closing sale price is
reported, the last reported sale price of the Common Stock) on that date on the
Nasdaq Capital Market;
(b) if
the Common Stock is not traded on the Nasdaq Capital Market on that date, the
closing sale price of the Common Stock (or, if no closing sale price is
reported, the last reported sale price of the Common Stock) on that date as
reported in composite transactions for the principal U.S. national or regional
securities exchange or association on which the Common Stock is
traded;
(c) if
the Common Stock is not traded on a U.S. national or regional securities
exchange or association on that date, the last quoted bid price per share on
that date in the over-the-counter market as reported by Pink Sheets LLC or
similar organization; or
(d) if
the Common Stock is not so quoted by Pink Sheets LLC or a similar organization
on that date, as determined by a nationally recognized independent investment
banking firm retained by the Corporation for this purpose.
The
“Closing Price” for any other share of Capital Stock shall be determined on a
comparable basis. For purposes of these Articles of Incorporation,
all references herein to the “Closing Price” and “last reported sale price” of
the Common Stock on the Nasdaq Capital Market shall be such closing sale price
and last reported sale price as reflected on the website of the Nasdaq Capital
Market (http://www.nasdaq.com) and as reported by Bloomberg Professional
Service;
provided
that
in the event that there is a discrepancy between the closing sale price or last
reported sale price as reflected on the website of the Nasdaq Capital Market and
as reported by Bloomberg Professional Service, the closing sale price and last
reported sale price on the website of the Nasdaq Capital Market shall
govern.
“Common
Stock” means the common stock, par value $2.50 per share, of the
Corporation.
“Conversion
Agent” means Registrar and Transfer Company acting in its capacity as conversion
agent for the Series 2009 Preferred Stock, and its successors and assigns or any
other conversion agent appointed by the Corporation.
“Conversion
Date” has the meaning set forth in Paragraph F.13(a)(iv)(B).
“Current
Market Price” of the Common Stock means the average Closing Price of the Common
Stock during the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-Dividend Date with respect to the issuance,
dividend or distribution requiring such computation. Notwithstanding the
foregoing, whenever successive adjustments to the Applicable Conversion Ratio
are called for pursuant to Paragraph 14, such adjustments shall be made to
the Current Market Price as may be necessary or appropriate to effectuate the
intent of Paragraph F.14 and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.
“Depositary”
means DTC or its nominee or any successor depositary appointed by the
Corporation.
“Distributed
Assets” has the meaning set forth in Paragraph F.14(a)(iv).
“Dividend
Payment Date” has the meaning set forth in Paragraph F.4(a).
“Dividend
Period” has the meaning set forth in Paragraph F.4(a).
“Dividend
Threshold Amount” has the meaning set forth in
Paragraph F.14(a)(v).
“DTC”
means The Depository Trust Company, together with its successors and
assigns.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Exchange
Property” has the meaning set forth in Paragraph F.15(a).
“Ex-Dividend
Date,” when used with respect to any issuance, dividend or distribution, means
the first date on which the shares of Common Stock trade on the applicable
exchange or in the applicable market, regular way, without the right to receive
the relevant issuance, dividend or distribution.
“Expiration
Date” has the meaning set forth in Paragraph F.14(a)(vi).
“Expiration
Time” has the meaning set forth in Paragraph F.14(a)(vi).
“Fair
Market Value” means the amount which a willing buyer would pay a willing seller
in an arm’s-length transaction as determined by the Board of
Directors.
“Holder”
means the Person in whose name the shares of Series 2009 Preferred Stock are
registered, which may be treated by the Corporation, Transfer Agent, Registrar,
paying agent and Conversion Agent as the absolute owner of the shares of Series
2009 Preferred Stock for the purpose of making payment and settling conversions
and for all other purposes.
“Junior
Stock” means the Common Stock and any other class or series of stock of the
Corporation hereafter authorized over which Series 2009 Preferred Stock has
preference or priority in the payment of dividends or in the distribution of
assets in the event of any voluntary or involuntary dissolution, liquidation or
winding-up of the affairs of the Corporation.
“Mandatory
Conversion Date” has the meaning set forth in
Paragraph F.13(b)(iii).
“Notice
of Mandatory Conversion” has the meaning set forth in
Paragraph F.13(b)(iii).
“Parity
Stock” means any other class or series of stock of the Corporation that ranks on
a par with Series 2009 Preferred Stock in the payment of dividends (whether such
dividends are cumulative or non-cumulative) or in the distribution of assets in
the event of any voluntary or involuntary dissolution, winding-up and
liquidation of the Corporation.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint-stock company, limited liability
company or trust.
“Registrar”
means Registrar and Transfer Company acting in its capacity as registrar for the
Series 2009 Preferred Stock, and its successors and assigns or any other
registrar appointed by the Corporation.
“Reorganization
Event” has the meaning set forth in Paragraph F.15(a).
“Series
2009 Issuance Date” means the date the Corporation closes its initial offering
of shares of Series 2009 Preferred Stock as reflected on its books and
records.
“Series
2009 Preferred Stock” has the meaning set forth in
Paragraph F.11.
“Spin-Off”
has the meaning set forth in Paragraph F.14(a)(iv).
“Spin-Off
Valuation Period” has the meaning set forth in
Paragraph F.14(a)(iv).
“Trading
Day” means a day on which the shares of Common Stock:
(a) are
not suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business;
and
(b) have
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
“Transfer
Agent” shall mean Registrar and Transfer Company acting in its capacity as
transfer agent for the Series 2009 Preferred Stock, and its successors and
assigns or any other transfer agent appointed by the Corporation.
“Voting
Parity Stock” means any Parity Stock having similar voting rights as the Series
2009 Preferred Stock.
“Voting
Shares” of a Person means shares of all classes of Capital Stock of such Person
then outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of the Board of Directors of such
Person.
4.
Dividends
.
(a)
Rate
. Holders
of Series 2009 Preferred Stock shall be entitled to receive, if, as and when
declared by the Board of Directors, but only out of funds legally available
therefor, non-cumulative cash dividends on the liquidation preference of $1,000
per share of Series 2009 Preferred Stock, and no more, from the date of issuance
at a rate per annum equal to 8.0%, payable quarterly in arrears on each
March 1, June 1, September 1 and December 1, commencing December
1, 2009. The term “Dividend Payment Date” means each
March 1, June 1, September 1 and December 1 during the
period that any Series 2009 Preferred Stock is outstanding. If any
date specified pursuant the preceding sentence is not a Business
Day, then
dividends will be payable on the first Business Day following such date and
dividends shall be payable to the actual payment date and no interest or other
payment shall be paid with respect of such delay. The term “Dividend
Period” means each calendar quarter ending March 31, June 30, September 30 and
December 31; provided that the first Dividend Period shall commence on the date
of first issuance of the Series 2009 Preferred Stock and shall continue through
the end of such calendar quarter. The amount of dividends payable for
any Dividend Period shall be computed on the basis of a 360-day year consisting
of twelve 30-day months.
(b)
Record
Date
. Each dividend shall be payable to Holders of record as
they appear on the Corporation’s stock register at 5:00 p.m., West Virginia
time, on the last day of the calendar quarter immediately preceding the relevant
Dividend Payment Date. The record date shall apply regardless of
whether any particular Record Date is a Business Day.
(c)
Non-Cumulative
Dividends
. Dividends on shares of Series 2009 Preferred Stock
shall be non-cumulative. To the extent that any dividends payable on
the shares of Series 2009 Preferred Stock on any Dividend Payment Date are not
declared and paid, in full or otherwise, on such Dividend Payment Date, then
such unpaid dividends shall not cumulate and shall cease to be payable and the
Corporation shall have no obligation to pay, and the holders of Series 2009
Preferred Stock shall have no right to receive, dividends payable in respect of
the Dividend Period ending immediately prior to such Dividend Payment Date after
such Dividend Payment Date, whether or not dividends are declared for any
subsequent Dividend Period with respect to the Series 2009 Preferred Stock, any
Parity Stock, any Junior Stock or any other class or series of authorized
preferred stock of the Corporation. Holders of Series 2009 Preferred
Stock shall not be entitled to any dividends, whether payable in cash, property
or stock, in excess of full dividends for each Dividend Period on the Series
2009 Preferred Stock. No interest, or sum of money in lieu of
interest, shall be payable in respect of any Dividend Payment or Dividend
Payments or failure to make any Dividend Payment or Dividend
Payments.
(d)
Priority of
Dividends
. So long as any share of Series 2009 Preferred Stock
remains outstanding and, as to any Junior Stock or Parity Stock then
outstanding, unless full dividends on all outstanding shares of Series 2009
Preferred Stock for the Dividend Period ending on or immediately prior to the
dividend payment date or other payment date for such Junior Stock or Parity
Stock have been paid in full or declared and set aside for payment, (i) no
dividend shall be declared or paid or set aside for payment and no distribution
shall be declared or made or set aside for payment on such Junior Stock (other
than a dividend payable solely in Junior Stock) or on such Parity Stock, subject
to the immediately following paragraph in the case of Parity Stock, and
(ii) no shares of Junior Stock shall be purchased, redeemed or otherwise
acquired for consideration by the Corporation, directly or indirectly (other
than (1) as a result of a reclassification of Junior Stock for or into
Junior Stock, (2) the exchange or conversion of one share of Junior Stock
for or into another share of Junior Stock, (3) repurchases in support of
our employee benefit and compensation programs, or (4) through the use of the
proceeds of a substantially contemporaneous sale of other shares of Junior
Stock), nor shall any monies be paid to or made available for a sinking fund for
the redemption of any such securities by the Corporation. When
dividends are not paid in full upon the Series 2009 Preferred Stock and any
Parity Stock, dividends upon shares of the Series 2009 Preferred Stock and such
Parity Stock will be declared on a proportional basis, based upon the ratio of
the amount of dividends
declared
on the Series 2009 Preferred Stock and such Parity Stock to the amount that, if
declared,
would be
full dividends (including accrued and unpaid dividends as to any Parity Stock
that bears dividends on a cumulative basis) on the Series 2009 Preferred Stock
and such Parity Stock through the next
succeeding
applicable dividend payment date. If the Board of Directors
determines not to pay any dividend or a full dividend on a Dividend Payment
Date, the Corporation will provide written notice to the holders of the Series
2009 Preferred Stock prior to such date. Subject to the foregoing,
and not otherwise, such dividends (payable in cash, stock or otherwise) as may
be determined by the Board of Directors may be declared and paid on any Junior
Stock from time to time out of any funds legally available therefor, and the
shares of Series 2009 Preferred Stock shall not be entitled to participate in
any such dividend.
5.
Liquidation
Rights
.
(a)
Liquidation
. In
the event of any voluntary or involuntary dissolution, winding-up and
liquidation of the Corporation, holders of Series 2009 Preferred Stock shall be
entitled, before any distribution or payment out of the assets of the
Corporation may be made to or set aside for the holders of any Junior Stock and
subject to the rights of the holders of any Parity Stock or class or series of
securities ranking senior to the Series 2009 Preferred Stock upon liquidation
and the rights of the Corporation’s creditors, to receive in full a liquidation
preference in an amount equal to $1,000 per share, plus an amount equal to all
declared and unpaid dividends for the then-current Dividend Period to the date
of liquidation. The holders of Series 2009 Preferred Stock shall not
be entitled to any further payments in the event of any such voluntary or
involuntary dissolution, winding-up and liquidation of the Corporation other
than what is expressly provided for in this Paragraph 5.
(b)
Partial
Payment
. If the assets of the Corporation are not sufficient
to pay in full the liquidation preference to all holders of Series 2009
Preferred Stock and the liquidation preferences of any Parity Stock to all
holders of such Parity Stock, the amounts paid to the holders of Series 2009
Preferred Stock and to the holders of all Parity Stock shall be pro rata in
accordance with the respective aggregate liquidation preferences of Series 2009
Preferred Stock and all such Parity Stock.
(c)
Residual
Distributions
. If the applicable liquidation preference has
been paid in full to all holders of Series 2009 Preferred Stock and all holders
of any Parity Stock, the holders of Junior Stock shall be entitled to receive
all remaining assets of the Corporation according to their respective rights and
preferences.
(d)
Merger, Consolidation and
Sale of Assets Not Liquidation
.
For purposes of this
Paragraph 5, the sale, conveyance, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
property and assets of the Corporation shall not be deemed a voluntary or
involuntary dissolution, liquidation or winding-up of the affairs of the
Corporation, nor shall the merger, consolidation or any other business
combination transaction of the Corporation into or with any other corporation or
person or the merger, consolidation or any other business combination
transaction of any other corporation or person into or with the Corporation be
deemed to be a voluntary or involuntary dissolution, liquidation or winding-up
of the affairs of the Corporation.
6.
Redemption
.
The Corporation shall
not have the right, without the consent of the holder thereof, or obligation to
purchase, call, redeem or otherwise acquire for value any or all of the Series
2009 Preferred Stock.
7.
Voting
Rights
. The Holders of the Series 2009 Preferred Stock shall
not have voting rights other than those described herein, except as specifically
required by West Virginia law. In any matter in which the Series 2009
Preferred Stock may vote, each share of Series 2009 Preferred Stock will
represent one vote.
So long
as any shares of Series 2009 Preferred Stock remain outstanding, the Corporation
will not, without the affirmative vote or consent of the Holders of at least
two-thirds of the outstanding shares of Series 2009 Preferred Stock voting
separately as a class with all other series of preferred stock upon which like
voting rights have been conferred and are exercisable, given in person or by
proxy, either in writing or at a meeting:
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amend
or alter the provisions of its articles of incorporation for the shares of
Series 2009 Preferred Stock so as to create or increase the authorized
amount of any specific class or series of stock ranking senior to the
Series 2009 Preferred Stock with respect to payment of dividends or the
distribution of its assets upon its liquidation, dissolution or winding
up; or
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amend,
alter or repeal the provisions of its articles of incorporation for the
shares of Series 2009 Preferred Stock so as to change the rights,
preferences, or limitations of the Series 2009 Preferred Stock;
or
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consummate
a share exchange or reclassification involving the shares of Series 2009
Preferred Stock or a merger or consolidation of the Corporation with
another entity, unless in each case shares of Series 2009 Preferred Stock
remain outstanding;
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provided, however,
that
(1) any increase in the amount of the Corporation’s authorized but unissued
shares of preferred stock, (2) any increase in the authorized or issued
shares of Series 2009 Preferred Stock, and (3) the creation and issuance,
or an increase in the authorized or issued amount, of other series of preferred
stock ranking equally with or junior to the Series 2009 Preferred Stock with
respect to the payment of dividends (whether such dividends are cumulative or
noncumulative) and/or the distribution of assets upon the Corporation’s
liquidation, dissolution or winding up, will not be deemed to change the rights,
preferences and limitations of the Series 2009 Preferred Stock.
8.
Rank
. Each
share of Series 2009 Preferred Stock shall be identical in all respects to every
other share of Series 2009 Preferred Stock, will rank equally with Parity Stock,
if any, and will rank senior to Junior Stock with respect to the payment of
dividends and the distribution of assets in the event of any voluntary or
involuntary dissolution, winding-up and liquidation of the
Corporation.
The
Corporation shall not be entitled to issue any class or series of its Capital
Stock, the terms of which provide that such class or series will rank senior to
the Series 2009 Preferred Stock as to payment of dividends or distribution of
assets upon liquidation, dissolution or winding-up of the Corporation, without
the approval of the Holders of at least two-thirds of
the
shares of the Series 2009 Preferred Stock then outstanding and any class or
series of Parity Stock then outstanding, voting together as a single class, with
each series or class having a number of votes proportionate to the aggregate
liquidation preference of the outstanding shares of such class or
series. Notwithstanding anything set forth in the articles of
incorporation or these Articles of Amendment to the contrary, the Board of
Directors, without the vote of the Holders of the Series 2009 Preferred Stock,
may authorize and issue additional shares of Junior Stock or Parity
Stock.
9.
Repurchase
. Subject
to the limitations imposed herein, the Corporation may purchase and sell Series
2009 Preferred Stock from time to time to such extent, in such manner, and upon
such terms as the Board of Directors may determine; provided, however, that the
Corporation shall not use any of its funds for any such purchase when there are
reasonable grounds to believe that the Corporation is, or by such purchase would
be, rendered insolvent.
10.
Unissued or Reacquired
Shares
. Shares of Series 2009 Preferred Stock not issued or
which have been issued and converted in accordance with the terms hereof or
otherwise purchased or acquired by the Corporation shall be restored to the
status of authorized but unissued shares of preferred stock without designation
as to series.
11.
No Sinking
Fund
. Shares of Series 2009 Preferred Stock are not subject to
the operation of a sinking fund.
12.
Right to
Convert
. Each Holder shall have the right, at such Holder’s
option, on any Dividend Payment Date, to convert all or any portion of such
Holder’s Series 2009 Preferred Stock into shares of Common Stock at the
Applicable Conversion Ratio (subject to the conversion procedures set forth in
Paragraph F.13 herein) plus cash in lieu of fractional shares.
13.
Conversion
.
(a)
Conversion
Procedures
.
(i) Effective
immediately prior to the close of business on the Mandatory Conversion Date or
any applicable Conversion Date, dividends shall no longer be declared on any
converted shares of Series 2009 Preferred Stock and such shares of Series 2009
Preferred Stock shall cease to be outstanding, in each case, subject to the
right of Holders to receive any declared and unpaid dividends on such shares and
any other payments to which they are otherwise entitled pursuant to Paragraphs
F.12, F.13(b), F.15 or F.16, as applicable.
(ii) Prior
to the close of business on the Mandatory Conversion Date or any applicable
Conversion Date, shares of Common Stock issuable upon conversion of, or other
securities issuable upon conversion of, any shares of Series 2009 Preferred
Stock shall not be deemed outstanding for any purpose, and Holders shall have no
rights with respect to the Common Stock or other securities issuable upon
conversion (including voting rights, rights to respond to tender offers for the
Common Stock and rights to receive any dividends or other distributions on the
Common Stock and/or other securities issuable upon conversion), by virtue of
holding shares of Series 2009 Preferred Stock.
(iii)
The
Person or Persons entitled to receive the Common Stock and/or other securities
issuable upon conversion of Series 2009 Preferred Stock shall be treated for all
purposes as the record holder(s) of such shares of Common Stock and/or such
other securities as of the close of business on the Mandatory Conversion Date or
any applicable Conversion Date. In the event that a Holder shall not
by written notice designate the name in which shares of Common Stock and/or
cash, other securities or other property (including payments of cash in lieu of
fractional shares) to be issued or paid upon conversion of shares of Series 2009
Preferred Stock should be registered or paid or the manner in which such shares
should be delivered, the Corporation shall be entitled to register and deliver
such shares, and make such payment, in the name of the Holder and in the manner
shown on the records of the Corporation through book-entry transfer through the
Depositary.
(iv) Conversion
into shares of Common Stock will occur on the Mandatory Conversion Date or any
applicable Conversion Date as follows:
(A) On
the Mandatory Conversion Date or applicable Conversion Date, certificates or
evidence of shares in book-entry form representing shares of Common Stock shall
be issued and delivered to Holders or their designee upon presentation and
surrender of the certificate evidencing the Series 2009 Preferred Stock to the
Conversion Agent if shares of the Series 2009 Preferred Stock are held in
certificated form, and, if required, the furnishing of appropriate endorsements
and transfer documents and the payment of all transfer and similar
taxes. If a Holder’s interest is a beneficial interest in a global
certificate representing Series 2009 Preferred Stock, a book-entry transfer
through the Depositary will be made by the Conversion Agent upon compliance with
the Depositary’s procedures for converting a beneficial interest in a global
security.
(B) On
the date of any conversion at the option of Holders pursuant to Paragraph F.12,
if a Holder’s interest is in certificated form, a Holder must do each of the
following in order to convert:
(1) complete
and manually sign the conversion notice provided by the Conversion Agent, or a
facsimile of the conversion notice, and deliver this irrevocable notice to the
Conversion Agent;
(2) surrender
the shares of Series 2009 Preferred Stock to the Conversion Agent;
(3) if
required, furnish appropriate endorsements and transfer documents;
(4) if
required, pay all transfer or similar taxes; and
(5) if
required, pay funds equal to any declared and unpaid dividend payable on the
next Dividend Payment Date.
If a
Holder’s interest is a beneficial interest in a global certificate representing
Series 2009 Preferred Stock, in order to convert a Holder must comply with
clauses (3) through
(5) listed
above and comply with the Depositary’s procedures for converting a beneficial
interest in a global security.
The date
on which a Holder complies with the procedures in this clause (iv) is the
“Conversion Date.”
(C) The
Conversion Agent shall, on a Holder’s behalf, convert the Series 2009 Preferred
Stock into shares of Common Stock and/or cash, other securities or other
property (involving payments of cash in lieu of fractional shares), in
accordance with the terms of the notice delivered by such Holder described in
clause (B) above. If a Conversion Date on which a Holder elects
to convert Series 2009 Preferred Stock is prior to the record date relating to
any declared dividend for the Dividend Period, such Holder will not have the
right to receive any declared dividends for that Dividend Period. If
a Conversion Date on which a Holder elects to convert Series 2009 Preferred
Stock or the Mandatory Conversion Date is after the record date for any declared
dividend and prior to the Dividend Payment Date, such Holder shall receive that
dividend on the relevant Dividend Payment Date if such Holder was the Holder of
record on the record date for that dividend. Notwithstanding the
preceding sentence, if the Conversion Date is after the record date and prior to
the Dividend Payment Date, whether or not such Holder was the Holder of record
on the record date, the Holder must pay to the Conversion Agent upon conversion
of the shares of Series 2009 Preferred Stock an amount in cash equal to the full
dividend actually paid on the Dividend Payment Date for the then-current
Dividend Period on the shares of Series 2009 Preferred Stock being converted,
unless the Holder’s shares of Series 2009 Preferred Stock are being converted
pursuant to Paragraph F.13(b).
(b)
Mandatory Conversion at the
Corporation’s Option
.
(i) On
or after June 1, 2012, provided that for at least 20 trading days within the 30
consecutive trading days immediately preceding the delivery of a Notice of
Mandatory Conversion, the Closing Price of the Common Stock exceeds 135% of
$5.50, the Corporation may, at its option, on any Dividend Payment Date, cause
some or all of the Series 2009 Preferred Stock to be converted into shares of
Common Stock at the Applicable Conversion Ratio. The Corporation will
provide Notice of Mandatory Conversion as set forth in
Paragraph F.13(b)(iii).
(ii) If
the Corporation elects to cause less than all of the Series 2009 Preferred Stock
to be converted under clause (i) above, the Conversion Agent will select
the Series 2009 Preferred Stock to be converted by lot, or on a pro rata basis
or by another method the Conversion Agent considers fair and appropriate,
including any method required by the Depositary (so long as such method is not
prohibited by the rules of any stock exchange or quotation association on which
the Series 2009 Preferred Stock is then traded or quoted). If the
Conversion Agent selects a portion of a Holder’s Series 2009 Preferred Stock for
partial conversion at the Corporation’s option and such Holder converts a
portion of its shares of Series 2009 Preferred Stock at the same time, the
portion converted at such Holder’s option will reduce the portion selected for
conversion at the Corporation’s option under this
Paragraph F.13(b).
(iii) If
the Corporation exercises the optional conversion right described in this
Paragraph F.13(b), the Corporation shall give notice (such notice a “Notice
of Mandatory Conversion”) by (i) providing a notice of such conversion by
first class mail to each Holder of
record
for the shares of Series 2009 Preferred Stock to be converted or
(ii) issuing a press release and making this information available on its
website. The Conversion Date shall be a date selected by the
Corporation (the “Mandatory Conversion Date”), not less than 10 days, and not
more than 20 days, after the date on which the Corporation provides the Notice
of Mandatory Conversion. In addition to any information required by
applicable law or regulation, the Notice of Mandatory Conversion shall state, as
appropriate:
(A) the
Mandatory Conversion Date;
(B) the
number of shares of Common Stock to be issued upon conversion of each share of
Series 2009 Preferred Stock; and
(C) the
aggregate number of shares of Series 2009 Preferred Stock to be
converted.
(c)
Mandatory Conversion After
Ten Years
. On June 1, 2019, all of the Series 2009 Preferred
Stock issued and outstanding shall automatically and mandatorily be converted
into shares of Common Stock at the Applicable Conversion Ratio. The
conversion of the Series 2009 Preferred Stock into Common Stock on June 1, 2019
shall not be conditioned on the price of the Common Stock or any other event or
occurrence.
14.
Anti-Dilution
Adjustments
.
(a) The
Applicable Conversion Ratio shall be adjusted from time to time by the
Corporation as follows:
(i) In
case the Corporation shall, at any time or from time to time while any of the
Series 2009 Preferred Stock is outstanding, pay a dividend in shares of Common
Stock or make a distribution in shares of Common Stock to all or substantially
all holders of its outstanding shares of Common Stock, then the Applicable
Conversion Ratio shall be adjusted based on the following formula:
where,
|
CR
0
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the Ex-Dividend Date for
such dividend or distribution;
|
|
|
|
|
|
CR
1
|
=
|
the
Applicable Conversion Ratio in effect on the Ex-Dividend Date for such
dividend or distribution;
|
|
|
|
|
|
OS
0
|
=
|
the
number of shares of Common Stock outstanding at 5:00 p.m., West
Virginia time, on the Trading Day immediately preceding the Ex-Dividend
Date for such dividend or distribution; and
|
|
|
|
|
|
OS
1
|
=
|
the
number of shares of Common Stock that would be outstanding immediately
after, and solely as a result of, such dividend or
distribution.
|
|
|
|
|
Any
adjustment made pursuant to this Paragraph F.14(a)(i) shall become
effective immediately prior to 9:00 a.m., West Virginia time, on the
Ex-Dividend Date for such dividend or distribution. If any dividend
or distribution that is the subject of this Paragraph F.14(a)(i) is
declared but not so paid or made, the Applicable Conversion Ratio shall be
readjusted, effective as of the date the Board of Directors publicly announces
its decision not to pay or make such dividend or distribution, to the Applicable
Conversion Ratio that would then be in effect if such dividend or distribution
had not been declared. For purposes of this Paragraph F.14(a)(i), the
number of shares of Common Stock outstanding at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the Ex-Dividend Date for such
dividend or distribution shall not include shares of Common Stock held in
treasury, if any. The Corporation will not pay any dividend or make
any distribution on shares of Common Stock held in treasury, if
any.
(ii)
In case outstanding shares
of Common Stock shall be subdivided into a greater number of shares of Common
Stock or combined into a smaller number of shares of Common Stock, the
Applicable Conversion Ratio shall be adjusted based on the following
formula:
where
,
|
CR
0
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the effective date of such
subdivision or combination;
|
|
|
|
|
|
CR
1
|
=
|
the
Applicable Conversion Ratio in effect on the effective date of such
subdivision or combination;
|
|
|
|
|
|
OS
0
|
=
|
the
number of shares of Common Stock outstanding at 5:00 p.m., West
Virginia time, on the Trading Day immediately preceding the effective date
of such subdivision or combination; and
|
|
|
|
|
|
OS
1
|
=
|
the
number of shares of Common Stock that would be outstanding immediately
after, and solely as a result of, such subdivision or
combination.
|
|
|
|
|
Any
adjustment made pursuant to this Paragraph F.14(a)(ii) shall become
effective immediately prior to 9:00 a.m., West Virginia time, on the
effective date of such subdivision or combination.
(iii) In
case the Corporation shall issue rights (other than rights issued pursuant to a
stockholders’ rights plan of the Corporation’s 1998 or 2009 stock option plans)
or warrants to all or substantially all holders of its outstanding shares of
Common Stock entitling them to purchase shares of Common Stock at a price per
share less than the Current Market Price
of the
Common Stock, the Applicable Conversion Ratio shall be adjusted based on the
following formula:
where,
|
CR
0
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the Ex-Dividend Date for
such issuance;
|
|
|
|
|
|
|
|
CR
1
|
=
|
the
Applicable Conversion Ratio in effect on the Ex-Dividend Date for such
issuance;
|
|
|
|
|
|
|
|
OS
0
|
=
|
the
number of shares of the Common Stock that are outstanding at
5:00 p.m., West Virginia time, on the Trading Day immediately
preceding the Ex-Dividend Date for such issuance;
|
|
|
|
|
|
|
X
|
=
|
the
total number of shares of the Common Stock issuable pursuant to such
rights or warrants; and
|
|
|
|
|
|
Y
|
=
|
the
number of shares of the Common Stock equal to the quotient of (x) the
aggregate price payable to exercise such rights or warrants, divided by
(y) the Current Market Price of the Common Stock.
|
|
|
|
|
Any
adjustment made pursuant to this Paragraph F.14(a)(iii) shall become
effective immediately prior to 9:00 a.m., West Virginia time, on the
Ex-Dividend Date for such issuance. In the event that such rights or
warrants described in this Paragraph F.14(a)(iii) are not so issued, the
Applicable Conversion Ratio shall be readjusted, effective as of the date the
Board of Directors publicly announces its decision not to issue such rights or
warrants, to the Applicable Conversion Ratio that would then be in effect if
such issuance had not been declared. To the extent that such rights or
warrants are not exercised prior to their expiration or shares of the Common
Stock are otherwise not delivered pursuant to such rights or warrants upon the
exercise of such rights or warrants, the Applicable Conversion Ratio shall be
readjusted to the Applicable Conversion Ratio that would then be in effect had
the adjustments made upon the issuance of such rights or warrants been made on
the basis of delivery of only the number of shares of Common Stock actually
delivered. In determining the aggregate price payable to exercise such
rights or warrants, there shall be taken into account any consideration received
by the Corporation for such rights or warrants and the value of such
consideration (if other than cash, to be determined by the Board of
Directors). For purposes of this Paragraph F.14(a)(iii), the number
of shares of Common Stock outstanding at 5:00 p.m., West Virginia time, on
the Trading Day immediately preceding the Ex-Dividend Date for such issuance
shall not include shares of Common Stock held in treasury, if any. The
Corporation will not issue any such rights or warrants in respect of shares of
Common Stock held in treasury, if any.
(iv) In
case the Corporation shall, by dividend or otherwise, distribute to all or
substantially all holders of its outstanding shares of Common Stock shares of
any class
of
Capital Stock of the Corporation, evidences of its indebtedness or assets,
including securities, but excluding (1) any dividends or distributions
referred to in Paragraph F.14(a)(i), (2) any rights or warrants
referred to in Paragraph F.14(a)(iii), (3) any dividends or
distributions referred to in Paragraph F.14(a)(v), (4) any dividends
or distributions in connection with a transaction to which Paragraph F.15
applies, or (5) any Spin-Off to which the provisions set forth below in
this Paragraph F.14(a)(iv) applies, any of the foregoing hereinafter
in this Paragraph F.14(a)(iv) called the “Distributed Assets”), then, in
each such case, the Applicable Conversion Ratio shall be adjusted based on the
following formula:
where,
|
CR
0
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the Ex-Dividend Date for
such distribution;
|
|
|
|
|
|
CR
1
|
=
|
the
Applicable Conversion Ratio in effect on the Ex-Dividend Date for such
distribution;
|
|
|
|
|
|
SP
0
|
=
|
the
Current Market Price of the Common Stock; and
|
|
|
|
|
|
FMV
|
=
|
the
Fair Market Value, on the Ex-Dividend Date for such distribution, of the
Distributed Assets so distributed, expressed as an amount per share of
Common Stock.
|
|
|
|
|
If the
transaction that gives rise to an adjustment pursuant to this
Paragraph F.14(a)(iv) is, however, one pursuant to which the payment of a
dividend or other distribution on the Common Stock of shares of Capital Stock
of, or similar equity interests in, a subsidiary or other business unit of the
Corporation (a “Spin-Off”) that are, or, when issued, will be, traded or listed
on the Nasdaq Global Select Market, the Nasdaq Capital Market, the New York
Stock Exchange or any other U.S. national securities exchange or association,
then the Applicable Conversion Ratio shall instead be adjusted based on the
following formula:
where,
|
CR
0
|
=
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the Ex-Dividend Date for
such distribution;
|
|
|
|
|
|
|
CR
1
|
=
|
=
|
the
Applicable Conversion Ratio in effect on the Ex-Dividend Date for such
distribution;
|
|
|
|
|
|
|
FMV
0
|
=
|
=
|
the
average of the Closing Prices of such capital stock or similar equity
interests distributed to holders of Common Stock applicable to one share
of Common Stock during the 10 consecutive Trading Day period commencing
on, and including, the effective date of the Spin-Off (the “Spin-Off
Valuation Period”); and
|
|
|
|
|
|
|
MP
0
|
=
|
=
|
the
average of the Closing Prices of the Common Stock during the Spin-Off
Valuation Period.
|
|
|
|
|
|
Any
adjustment made pursuant to this Paragraph F.14(a)(iv) shall become
effective immediately prior to 9:00 a.m., West Virginia time, on the
Ex-Dividend Date for such distribution. If any dividend or distribution of
the type described in this Paragraph F.14(a)(iv) is not so paid or made,
the Applicable Conversion Ratio shall be readjusted, effective as of the date
the Board of Directors publicly announces its decision not to pay such dividend
or distribution, to the Applicable Conversion Ratio that would then be in effect
if such dividend or distribution had not been declared. If an adjustment
to the Applicable Conversion Ratio is required under this
Paragraph F.14(a)(iv), delivery of any additional shares of Common Stock
upon conversion of the Series 2009 Preferred Stock shall be delayed to the
extent necessary in order to complete the calculations provided for in this
Paragraph F.14(a)(iv).
(v) In
case the Corporation shall pay a dividend or otherwise make a distribution to
all or substantially all holders of its outstanding shares of Common Stock
consisting exclusively of cash, excluding (1) any dividend or distribution
in connection with the liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, or upon transaction to which
Paragraph F.15 applies, or (2) regular cash dividends to the extent
that such dividends do not exceed $0.50 per share on a semi-annual basis or, if
applicable, $0.25 per share on a quarterly basis (the “Dividend Threshold
Amount”), then the Applicable Conversion Ratio shall be adjusted based on the
following formula:
where,
|
CR
0
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Trading Day immediately preceding the Ex-Dividend Date for
such dividend or distribution;
|
|
|
|
|
|
CR
1
|
=
|
the
Applicable Conversion Ratio in effect on the Ex-Dividend Date for such
dividend or distribution;
|
|
|
|
|
|
SP
0
|
=
|
the
Current Market Price of the Common Stock; and
|
|
|
|
|
|
DIV
|
=
|
the
amount in cash per share of Common Stock of the dividend or distribution,
as determined pursuant to the following sentences. If any adjustment is
required to be made as set forth in this Paragraph F.14(a)(v) as a
result of a distribution (1) that is a regularly scheduled quarterly
dividend, such adjustment would be based on the amount by which such
dividend exceeds the Dividend Threshold Amount or (2) that is not a
regularly scheduled quarterly dividend, such adjustment would be based on
the full amount of such distribution. The Dividend Threshold Amount is
subject to adjustment on an inversely proportional basis whenever the
Applicable Conversion Ratio is adjusted;
provided
that no
adjustment shall be
|
|
|
|
made
to the Dividend Threshold Amount for any adjustment made to the Applicable
Conversion Ratio as described under this
Paragraph F.14(a)(v).
|
|
|
|
|
Any
adjustment made pursuant to this Paragraph F.14(a)(v) shall become
effective immediately prior to 9:00 a.m., West Virginia time, on the
Ex-Dividend Date for such dividend or distribution. If any dividend or
distribution of the type described in this Paragraph F.14(a)(v) is not so
paid or made, the Applicable Conversion Ratio shall be readjusted, effective as
of the date the Board of Directors publicly announces its decision not to pay
such dividend or distribution, to the Applicable Conversion Ratio that would
then be in effect if such dividend or distribution had not been
declared.
(vi) In
case of purchases of Common Stock pursuant to a tender offer or exchange offer
made by the Corporation or any subsidiary of the Corporation for all or any
portion of the Common Stock, to the extent that the cash and value of any other
consideration included in the payment per share of Common Stock exceeds the
Closing Price per share of Common Stock on the Trading Day next succeeding the
last date, as it may be amended, on which tenders or exchanges may be made
pursuant to such tender offer or exchange offer (the “Expiration Date”), the
Applicable Conversion Ratio shall be adjusted based on the following
formula:
|
CR
1
=
CR
0
x
|
|
|
SP
1
x
OS
0
|
where,
|
CR
0
|
=
|
the
Applicable Conversion Ratio in effect at 5:00 p.m., West Virginia
time, on the Expiration Date;
|
|
|
|
|
|
CR
1
|
=
|
the
Applicable Conversion Ratio in effect immediately after 5:00 p.m.,
West Virginia time, on the Expiration Date;
|
|
|
|
|
|
AC
|
=
|
the
aggregate value of all cash and any other consideration (as determined by
the Board of Directors), on the Expiration Date, paid or payable for
shares of Common Stock validly tendered or exchanged and not withdrawn as
of the Expiration Date;
|
|
|
|
|
|
OS
1
|
=
|
the
number of shares of Common Stock outstanding immediately after the last
time tenders or exchanges may be made pursuant to such tender offer or
exchange offer (the “Expiration Time”);
|
|
|
|
|
|
OS
0
|
=
|
the
number of shares of Common Stock outstanding immediately before the
Expiration Time; and
|
|
|
|
|
|
SP
1
|
=
|
the
average Closing Price per share of Common Stock during the 10 consecutive
Trading Day period commencing on the Trading Day immediately after the
Expiration Date.
|
|
|
|
|
Any
adjustment made pursuant to this Paragraph F.14(a)(vi) shall become
effective immediately prior to 9:00 a.m., West Virginia time, on the
Trading Day immediately following the Expiration Date. If the
Corporation, or one of its subsidiaries, is obligated to purchase shares of
Common Stock pursuant to any such tender offer or exchange offer, but the
Corporation or such subsidiary is permanently prevented by applicable law from
effecting any such purchases, or all such purchases are rescinded, then the
Applicable Conversion Ratio shall be readjusted to be the Applicable Conversion
Ratio that would then be in effect if such tender offer or exchange offer had
not been made. Except as set forth in the preceding sentence, if the
application of this Paragraph F.14(a)(vi) to any tender offer or exchange
offer would result in a decrease in the Applicable Conversion Ratio, no
adjustment shall be made for such tender offer or exchange offer under this
Paragraph F.14(a)(vi). If an adjustment to the Applicable Conversion
Ratio is required under this Paragraph F.14(a)(vi), delivery of any
additional shares of Common Stock upon conversion of the Series 2009 Preferred
Stock shall be delayed to the extent necessary in order to complete the
calculations provided for in this Paragraph F.14(a)(vi).
(vii) To
the extent the Corporation has a rights plan in effect with respect to the
Common Stock on any Conversion Date, upon conversion of any shares of the Series
2009 Preferred Stock, the Holder will receive, in addition to the shares of
Common Stock, the rights under the rights plan, unless, prior to such Conversion
Date, the rights have separated from the shares of Common Stock in accordance
with the provisions of such rights plan, in which case the Applicable Conversion
Ratio shall be adjusted at the time of separation as if the Corporation made a
distribution to all or substantially all holders of the outstanding shares of
Common Stock as provided in Paragraph F.14(a)(iv), subject to readjustment
in the event of the expiration, termination or redemption of such
rights.
(viii) In
cases where the Fair Market Value of shares of Capital Stock, evidences of
indebtedness, assets (including cash) or securities, including with respect to a
Spin-Off, as to which Paragraph F.14(a)(iv) or Paragraph F.14(a)(v)
apply, applicable to one share of Common Stock, distributed to holders of Common
Stock:
(1) equals
or exceeds the Current Market Price of the Common Stock; or
(2)
the
Current Market Price of the Common Stock exceeds the fair market value of shares
of Capital Stock, evidences of indebtedness, assets (including cash) or
securities so distributed by less than $1.00,
rather
than being entitled to an adjustment in the Applicable Conversion Ratio, the
Holder shall be entitled to receive upon conversion, in addition to the shares
of Common Stock, the kind and amount of shares of Capital Stock, evidences of
indebtedness, assets (including cash) or securities comprising the distribution
that such Holder would have received if such Holder’s Series 2009 Preferred
Stock had been converted immediately prior to the record date for determining
the holders of Common Stock entitled to receive the distribution.
(ix) Notwithstanding
any of the foregoing clauses in this Paragraph F.14, the applicable
Applicable Conversion Ratio will not be adjusted pursuant to this
Paragraph F.14 if the Holders may participate in the transaction that would
otherwise give rise to adjustment pursuant to this Paragraph F.14 as a
result of holding shares of the Series 2009 Preferred Stock, without conversion
of such Holder’s shares of Series 2009 Preferred Stock, as if such Holder held
the full number of shares of Common Stock in to which a share of Series 2009
Preferred Stock may then be converted.
(x) The
Corporation may, but is not required to, make such increases in the Applicable
Conversion Ratio, in addition to those required by Paragraph F.14(a)(i)
through (vi), as the Board of Directors deems advisable to avoid or diminish any
income tax to holders of Common Stock resulting from any dividend or
distribution of Common Stock (or rights to acquire Common Stock) or from any
event treated as such for income tax purposes.
(xi) In
addition to the foregoing, to the extent permitted by applicable law and subject
to the applicable rules of the Nasdaq Capital Market, the Corporation from
time to time may increase the Applicable Conversion Ratio by any amount for any
period of time if the period is at least 20 Business Days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the
Corporation, which determination shall be conclusive. Whenever the
Applicable Conversion Ratio is increased pursuant to the preceding sentence, the
Corporation shall mail to Holders of record of the Series 2009 Preferred Stock a
notice of the increase, which notice will be given at least 15 calendar days
prior to the effectiveness of any such increase, and such notice shall state the
increased Applicable Conversion Ratio and the period during which it will be in
effect.
(xii) The
Corporation shall not increase the Applicable Conversion Ratio pursuant to any
adjustment beyond the maximum level permitted by the continued listing standards
of the Nasdaq Capital Market;
however
the Corporation
covenants not to enter into any transaction, or take any other action, that will
require an adjustment to the Applicable Conversion Ratio that would exceed the
number of shares of Common Stock that would require stockholder approval under
the continued listing standards of the Nasdaq Capital Market without having
obtained prior stockholder approval.
(xiii) If
during a period applicable for calculating the Closing Price of Common Stock or
any other security, an event occurs that requires an adjustment to
the
Applicable
Conversion Ratio, the Closing Price of such security shall be calculated for
such period in a manner determined by the Corporation to appropriately reflect
the impact of such event on the price of such security during such
period. Whenever any provision of these Articles of Incorporation
require a calculation of an average of Closing Prices of Common Stock or any
other security over multiple days, appropriate adjustments shall be made to
account for any adjustment to the Applicable Conversion Ratio that becomes
effective, or any event requiring an adjustment to the Applicable Conversion
Ratio where the Ex-Dividend Date of the event occurs, at any time during the
period during which the average is to be calculated.
(xiv) In
the event the Common Stock ceases to be traded on an applicable exchange or
applicable market and as a result there is no Ex-Dividend Date with respect to
any issuance, dividend or distribution requiring an adjustment to the Applicable
Conversion Ratio pursuant to this Paragraph F.14, the Corporation shall
calculate the adjustment using the record date for such issuance, dividend or
distribution in lieu of the Ex-Dividend Date.
(xv) Whenever
the Applicable Conversion Ratio is adjusted as herein provided, the Corporation
will issue a notice to the Conversion Agent and DTC containing the relevant
information and make this information available on the Corporation’s
website. In addition, the Corporation shall provide upon the request
of a Holder, to the extent not posted on the Corporation website, a brief
statement retting forth in reasonable detail reasonable detail the method by
which the adjustment to the Applicable Conversion Ratio was determined and
setting forth the revised Applicable Conversion Ratio.
15.
Reorganization
Events
.
(a) In
the event of:
(i) any
consolidation or merger of the Corporation with or into another Person, in each
case pursuant to which the Common Stock will be converted into cash, securities,
or other property of the Corporation or another Person;
(ii) any
sale, transfer, lease, or conveyance to another Person of all or substantially
all of the consolidated assets of the Corporation and its subsidiaries, taken as
a whole, in each case pursuant to which the Common Stock will be converted into
cash, securities, or other property;
(iii) any
reclassification of the Common Stock into securities, including securities other
than the Common Stock; or
(iv) any
statutory exchange of the Corporation’s securities with another Person (other
than in connection with a merger or acquisition);
(any such
event specified in this Paragraph F.15(a), a “Reorganization Event”), each
share of Series 2009 Preferred Stock outstanding immediately prior to such
Reorganization Event shall, without the consent of Holders, become convertible
into the types and amounts of securities, cash, and other property that is or
was receivable in such Reorganization Event by a holder of the shares of Common
Stock that was not the counterparty to the Reorganization Event or
an
affiliate
of such other party in exchange for such Common Stock (such securities, cash,
and other property, the “Exchange Property”).
(b) In
the event that holders of the shares of the Common Stock have the opportunity to
elect the form of consideration to be received in such transaction, the
consideration that the Holders are entitled to receive upon conversion shall be
deemed to be the types and amounts of consideration received by the majority of
the holders of the shares of the Common Stock that affirmatively make an
election (or of all such holders if none make an election). On each
Conversion Date following a Reorganization Event, the Applicable Conversion
Ratio then in effect will be applied to the value on such Conversion Date of the
securities, cash, or other property received per share of Common Stock,
determined as set forth above. The amount of Exchange Property receivable
upon conversion of any Series 2009 Preferred Stock in accordance with
Paragraphs F.12 or F.13(b) hereof shall be determined based upon the then
Applicable Conversion Ratio.
(c) The
above provisions of this Paragraph F.15 shall similarly apply to successive
Reorganization Events and the provisions of Paragraph F.14 shall apply to
any shares of Capital Stock of the Corporation (or any successor) received by
the holders of the Common Stock in any such Reorganization Event.
(d) The
Corporation (or any successor) shall, within 20 days of the occurrence of
any Reorganization Event, provide written notice to the Holders of such
occurrence of such event and of the type and amount of the cash, securities or
other property that constitutes the Exchange Property. Failure to
deliver such notice shall not affect the operation of this
Paragraph F.15.
16.
Fractional
Shares
.
(a) No
fractional shares of Common Stock will be issued as a result of any conversion
of shares of Series 2009 Preferred Stock.
(b) In
lieu of any fractional share of Common Stock otherwise issuable in respect of
any conversion at the Corporation’s option pursuant to Paragraph F.13(b)
hereof or any conversion at the option of the Holder pursuant to
Paragraph F.12, if applicable, the Corporation shall pay an amount in cash
(computed to the nearest cent) equal to the same fraction of the Closing Price
of the Common Stock determined as of the second Trading Day immediately
preceding the effective date of conversion.
(c) If
more than one share of the Series 2009 Preferred Stock is surrendered for
conversion at one time by or for the same Holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of the Series 2009 Preferred Stock so
surrendered.
17.
Reservation of Common
Stock
.
(a) The
Corporation shall at all times reserve and keep available out of its authorized
and unissued Common Stock, solely for issuance upon the conversion of shares of
Series 2009 Preferred Stock as provided in these Articles of Amendment, free
from any
preemptive
or other similar rights, such number of shares of Common Stock as shall from
time to time be issuable upon the conversion of all the shares of Series 2009
Preferred Stock then outstanding, calculated assuming the initial Applicable
Conversion Price, subject to adjustment as described under
Paragraph F.14. For purposes of this Paragraph F.17(a), the
number of shares of Common Stock that shall be deliverable upon the conversion
of all outstanding shares of Series 2009 Preferred Stock shall be computed as if
at the time of computation all such outstanding shares were held by a single
Holder.
(b) All
shares of Common Stock delivered upon conversion of the Series 2009 Preferred
Stock shall be duly authorized, validly issued, fully paid and non-assessable,
free and clear of all liens, claims, security interests and other encumbrances
(other than liens, charges, security interests and other encumbrances created by
the Holders).
(c) Prior
to the delivery of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series 2009 Preferred Stock, the Corporation
shall use its reasonable best efforts to comply with all federal and state laws
and regulations thereunder requiring the registration of such securities with,
or any approval of or consent to the delivery thereof by, any governmental
authority.
(d) The
Corporation hereby covenants and agrees that, so long as the Common Stock shall
be listed on the Nasdaq Capital Market or any other national securities exchange
or automated quotation system, the Corporation will, if permitted by the rules
of such exchange or automated quotation system, list and keep listed all the
Common Stock issuable upon conversion of the Series 2009 Preferred Stock;
provided, however, that if the rules of such exchange or automated quotation
system permit the Corporation to defer the listing of such Common Stock until
the first conversion of Series 2009 Preferred Stock into Common Stock in
accordance with the provisions hereof, the Corporation covenants to list such
Common Stock issuable upon conversion of the Series 2009 Preferred Stock in
accordance with the requirements of such exchange or automated quotation system
at such time.
18.
Preemptive or Subscription
Rights
. The Holders of Series 2009 Preferred Stock shall not
have any preemptive or subscription rights.
