FILED AND EFFECTIVE JUNE 1, 2004

 

                                STATE OF MICHIGAN

                 MICHIGAN DEPARTMENT OF LABOR & ECONOMIC GROWTH

              BUREAU OF COMMERCIAL SERVICES -- CORPORATION DIVISION

                                LANSING, MICHIGAN

 

                       RESTATED ARTICLES OF INCORPORATION

                              (Profit Corporation)

                    Corporation Identification Number 485-283

 

       These Restated Articles of Incorporation of CMS Energy Corporation (the

"Corporation") are executed pursuant to the provisions of Sections 641 through

651, Act 284, Public Acts of 1972, as amended, (the "Act"). These Restated

Articles of Incorporation were authorized by the Board of Directors at its

meeting held on May 28, 2004 without a vote of the shareholders pursuant to the

provisions of Section 642 of the Act in order to restate and integrate the

Articles and do not further amend the Articles as theretofore amended, and there

is no material discrepancy between those provisions and the provisions of these

Restated Articles.

 

       The present name of the Corporation is CMS Energy Corporation. There are

no former names.

 

       The date of filing the original Articles of Incorporation in Michigan was

February 26, 1987.

 

                       RESTATED ARTICLES OF INCORPORATION

 

       The following Restated Articles of Incorporation supersede the original

Articles as amended and shall be the Articles of Incorporation of CMS Energy

Corporation.

 

                                    ARTICLE I

 

       The name of the corporation is CMS Energy Corporation (hereinafter called

the "Corporation").

 

                                   ARTICLE II

 

       The purpose or purposes for which the Corporation is organized is to

engage in any activity within the purposes for which corporations may be

organized under the Business Corporation Act of Michigan.

 

                                   ARTICLE III

 

       The total number of shares of all classes of stock which the Corporation

shall have authority to issue is 360,000,000, of which 10,000,000 shares, par

value $.01 per share, are of a class designated Preferred Stock ("Preferred

Stock"), and 350,000,000 shares, par value $.01 per share, are of a class

designated Common Stock ("Common Stock").

 

 

 

 

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       The statement of the designations and the voting and other powers,

preferences and rights, and the qualifications, limitations or restrictions

thereof, of the Common Stock and of the Preferred Stock is as follows:

 

                                PREEMPTIVE RIGHTS

 

       The holders of shares of Preferred Stock or of Common Stock shall have no

preemptive rights to subscribe for or purchase any additional issues of shares

of the capital stock of the Corporation of any class now or hereafter authorized

or any Preferred Stock, bonds, debentures, or other obligations or rights or

options convertible into or exchangeable for or entitling the holder or owner to

subscribe for or purchase any shares of capital stock, or any rights to exchange

shares issued for shares to be issued.

 

                                 PREFERRED STOCK

 

       The shares of Preferred Stock may be issued from time to time in one or

more series with such relative rights and preferences of the shares of any such

series as may be determined by the Board of Directors. The Board of Directors is

authorized to fix by resolution or resolutions adopted prior to the issuance of

any shares of each particular series of Preferred Stock, the designation,

powers, preferences and relative, participating, optional and other rights, and

the qualifications, limitations and restrictions thereof, if any, of such

series, including, but without limiting the generality of the foregoing, the

following:

 

       (a)    The rate of dividend, if any;

 

       (b)    The price at and the terms and conditions upon which shares may

be redeemed;

 

       (c)    The rights, if any, of the holders of shares of the series upon

voluntary or involuntary liquidation, merger, consolidation, distribution or

sale of assets, dissolution or winding up of the Corporation;

 

       (d)    Sinking fund or redemption or purchase provisions, if any, to be

provided for shares of the series;

 

       (e)    The terms and conditions upon which shares may be converted into

shares of other series or other capital stock, if issued with the privilege of

conversion; and

 

       (f)    The voting rights in the event of default in the payment of

dividends or under such other circumstances and upon such conditions as the

Board of Directors may determine.

 

       No holder of any shares of any series of Preferred Stock shall be

entitled to vote in the election of directors or in respect of any other matter

except as may be required by the Michigan Business Corporation Act, as amended,

or as is permitted by the resolution or resolutions adopted by the Board of

Directors authorizing the issue of such series of Preferred Stock.

 

 

 

 

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                         Series Established By Articles

 

       There is hereby established one series of Preferred Stock designated as

4.50% Cumulative Convertible Preferred Stock. The number of shares that shall

constitute such series shall be 5,000,000 shares.

 

                  4.50% Cumulative Convertible Preferred Stock

 

        The Board of Directors hereby establishes a series of the preferred

stock of the Corporation and hereby states that the series' voting powers,

designations, preferences and relative, participating, optional or other special

rights, and qualifications, limitations or restrictions thereof (in addition to

the provisions set forth in the Articles of Incorporation which are applicable

to the preferred stock of all series), shall be as follows:

 

        1.   Designation and Amount; Ranking.

 

        (a) There shall be created from the 10,000,000 shares of preferred

stock, par value $0.01 per share, of the Corporation authorized to be issued

pursuant to the Articles of Incorporation, a series of preferred stock,

designated as the "4.50% Cumulative Convertible Preferred Stock," par value

$0.01 per share (the "4.50% Convertible Preferred Stock"), and the number of

shares of such series shall be 5,000,000. Such number of shares may be decreased

by resolution of the Board of Directors; provided that no decrease shall reduce

the number of shares of 4.50% Convertible Preferred Stock to a number less than

that of the shares of 4.50% Convertible Preferred Stock then outstanding plus

the number of shares issuable upon exercise of options or rights then

outstanding.

 

        (b) The 4.50% Convertible Preferred Stock will, with respect to both

dividend rights and rights upon the liquidation, winding-up or dissolution of

the Corporation, rank (i) senior to all Junior Stock and (ii) on a parity with

all other Parity Stock.

 

        2.   Definitions. As used herein, the following terms shall have the

following meanings:

 

           "Accumulated Dividends" shall mean, with respect to any share of

        4.50% Convertible Preferred Stock, as of any date, the aggregate

        accumulated and unpaid dividends on such share from and including the

        most recent Dividend Payment Date to which dividends have been paid (or

        the Issue Date, if such date is prior to the first Dividend Payment

        Date) to but not including such date.

 

           "Additional Dividends" shall have the meaning given to it in Section

        3(b).

 

           "Affiliate" shall have the meaning ascribed to it, on the date

        hereof, under Rule 405 of the Securities Act.

 

           "Agent Members" shall have the meaning given to it in Section

        11(a)(ii).

 

           "Board of Directors" shall mean the Board of Directors of the

        Corporation or, with respect to any action to be taken by the Board of

        Directors, any committee (special or otherwise) of the Board of

        Directors duly authorized to take such action.

 

 

 

 

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           "Business Day" shall mean any day other than a Saturday, Sunday or

        other day on which commercial banks in The City of New York are

        authorized or required by law or executive order to close.

 

           "Certificate of Designation" means the designation if the 4.50%

        Convertible Preferred Stock in this Article III.

 

           "Certificated 4.50% Convertible Preferred Stock" shall have the

        meaning given to it in Section 4(f).

 

           "Common Equity" of any Person means capital stock of such Person that

        is generally entitled to (i) vote in the election of directors of such

        Person or (ii) if such Person is not a corporation, vote or otherwise

        participate in the selection of the governing body, partners, managers

        or others that will control the management or policies of such Person.

 

            "Common Stock" shall mean the common stock, par value $0.01 per

        share, of the Corporation, or any other class of stock resulting from

        successive changes or reclassifications of such common stock consisting

        solely of changes in par value, or from par value to no par value, or as

        a result of a subdivision, combination or merger, consolidation or

        similar transaction in which the Corporation is a constituent

        corporation.

 

            "Continuing Director" means a director who either was a member of

        the Board of Directors on December 5, 2003 or who becomes a member of

        the Board of Directors subsequent to that date and whose appointment,

        election or nomination for election by the Corporation's shareholders is

        duly approved by a majority of the Continuing Directors on the Board of

        Directors at the time of such approval, either by a specific vote or by

        approval of the proxy statement issued by the Corporation on behalf of

        the Board of Directors in which such individual is named as nominee for

        director.

 

           "Conversion Agent" means the office or agency designated by the

        Corporation where 4.50% Convertible Preferred Stock may be presented for

        conversion. Initially, the Conversion Agent shall be the Corporation

        located at One Energy Plaza, Jackson, Michigan 49201.

 

           "Conversion Date" shall have the meaning given to it in Section 7(b).

 

           "Conversion Notice" shall have the meaning given to it in Section

        7(a).

 

           "Conversion Price" shall mean $9.893 per share of Common Stock.

 

           "Conversion Rate" shall mean the number of shares of Common Stock

        issuable upon conversion of a share of 4.50% Convertible Preferred Stock

        per Liquidation Preference. The initial Conversion Rate is 5.0541 shares

        of Common Stock issuable upon conversion of a share of 4.50% Convertible

        Preferred Stock per Liquidation Preference.

 

           "Corporation Notice" shall have the meaning given to it in Section

        4(e).

 

           "Corporation Notice Date" shall have the meaning given to it in

        Section 4(e).

 

           "Distributed Assets or Securities" shall have the meaning given to it

        in Section 7(f)(iii).

 

 

 

 

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           "Dividend Payment Date" shall mean March 1, June 1, September 1 and

        December 1 of each year, commencing March 1, 2004.

 

           "Dividend Rate" shall have the meaning given to it in Section 3(a).

 

           "Dividend Record Date" shall mean February 15, May 15, August 15 and

        November 15 of each year.

 

           "DTC" or "Depository" means The Depository Trust Company.

 

           "Equity Interests" means any capital stock, partnership, joint

        venture, member or limited liability or unlimited liability company

        interest, beneficial interest in a trust or similar entity or other

        equity interest or investment of whatever nature.

 

           "Exchange Act" shall mean the Securities Exchange Act of 1934, as

        amended, and the rules and regulations promulgated thereunder.

 

           "Fair Market Value" means the amount which a willing buyer would pay

        a willing seller in an arm's length transaction.

 

           A "Fundamental Change" shall be deemed to have occurred at such time

        after the original issuance of the 4.50% Convertible Preferred Stock

        that any of the following occurs: (i) the Common Stock or other capital

        stock into which the 4.50% Convertible Preferred Stock is convertible is

        neither listed for trading on a United States national securities

        exchange nor approved for trading on the NASDAQ National Market or

        another established automated over-the-counter trading market in the

        United States; (ii) a "person" or "group" within the meaning of Section

        13(d) of the Exchange Act, other than the Corporation, any subsidiary of

        the Corporation or any employee benefit plan of the Corporation or any

        such subsidiary, files a Schedule TO (or any other schedule, form or

        report under the Exchange Act) disclosing that such person or group has

        become the direct or indirect ultimate "beneficial owner" (as such term

        is used in Rules 13d-3 and 13d-5 under the Exchange Act, except that a

        person or group shall be deemed to have "beneficial ownership" of all

        shares that such Person or group has the right to acquire whether such

        right is exercisable immediately or only after the passage of time) of

        Common Equity of the Corporation representing more than 50% of the

        voting power of the Corporation's Common Equity; (iii) consummation of

        any share exchange, consolidation or merger of the Corporation pursuant

        to which the Common Stock will be converted into cash, securities or

        other property or any sale, lease or other transfer (in one transaction

        or a series of transactions) of all or substantially all of the

        consolidated assets of the Corporation and its subsidiaries, taken as a

        whole, to any Person (other than the Corporation or one or more of the

        Corporation's subsidiaries); provided, however, that a transaction where

        the holders of the Corporation's Common Equity immediately prior to such

        transaction own, directly or indirectly, more than 50% of the aggregate

        voting power of all classes of Common Equity of the continuing or

        surviving corporation or transferee immediately after such event shall

        not be a Fundamental Change; or (iv) Continuing Directors cease to

        constitute at least a majority of the Board of Directors; provided,

        however, that a Fundamental Change shall not be deemed to have occurred

        in respect of any of the foregoing if either (A) the Last Reported Sale

        Price per share of Common Stock for any five Trading Days within the

        period of 10 consecutive Trading Days ending immediately before the

        later of the Fundamental Change or the public announcement thereof shall

        equal or exceed 105% of the Conversion Price in effect immediately

        before the Fundamental Change or the public

 

 

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        announcement thereof or (B) at least 90% of the consideration

        (excluding cash payments for fractional shares) in the transaction or

        transactions constituting the Fundamental Change consists of shares of

        capital stock traded on a national securities exchange or quoted on the

        NASDAQ National Market (or which shall be so traded or quoted when

        issued or exchanged in connection with such Fundamental Change) (such

        securities being referred to as "Publicly Traded Securities") and as a

        result of such transaction or transactions the 4.50% Convertible

        Preferred Stock becomes convertible into such Publicly Traded

        Securities (excluding cash payments for fractional shares).

 

           "Fundamental Change Purchase Date" shall have the meaning given to it

        in Section 4(a).

 

           "Fundamental Change Purchase Notice" shall have the meaning given to

        it in Section 4(c).

 

           "Fundamental Change Purchase Price" shall have the meaning given to

        it in Section 4(a).

 

           "Global 4.50% Convertible Preferred Stock" shall have the meaning

        given to it in Section 11(a)(i).

 

           "Holder" or "holder" shall mean a holder of record of the 4.50%

        Convertible Preferred Stock.

 

           "Issue Date" shall mean December 5, 2003, the original date of

        issuance of the 4.50% Convertible Preferred Stock.

 

           "Junior Stock" shall mean all classes of common stock of the

        Corporation and each other class of capital stock or series of 4.50%

        Convertible Preferred Stock established after the Issue Date, by the

        Board of Directors, the terms of which do not expressly provide that

        such class or series ranks senior to or on parity with the 4.50%

        Convertible Preferred Stock as to dividend rights or rights upon the

        liquidation, winding-up or dissolution of the Corporation.

 

           "Last Reported Sale Price" of Common Stock on any date means the

        closing sale price per share (or, if no closing sale price is reported,

        the average of the bid and ask prices or, if more than one in either

        case, the average of the average bid and the average ask prices) on that

        date as reported in composite transactions for the principal U.S.

        securities exchange on which Common Stock is traded or, if the Common

        Stock is not listed on a U.S. national or regional securities exchange,

        as reported by the NASDAQ National Market. If the Common Stock is not

        listed for trading on a U.S. national or regional securities exchange

        and not reported by the NASDAQ National Market on the relevant date, the

        Last Reported Sale Price shall be the last quoted bid price for Common

        Stock in the over-the-counter market on the relevant date as reported by

        the National Quotation Bureau or similar organization. If the Common

        Stock is not so quoted, the Last Reported Sale Price will be the average

        of the mid-point of the last bid and ask prices for the Common Stock on

        the relevant date from each of at least three nationally recognized

        independent investment banking firms selected by the Corporation for

        this purpose.

 

           "Liquidation Preference" shall mean, with respect to each share of

        4.50% Convertible Preferred Stock, $50.

 

           "Mandatory Conversion Date" shall have the meaning given to it in

        Section 8(b).

 

           "Market Price" means the average of the Last Reported Sales Price per

        share of Common

 

 

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        Stock for the 20 Trading Day period ending on the applicable date of

        determination (if the applicable date of determination is a Trading Day

        or, if not, then on the last Trading Day prior to such applicable date

        of determination), appropriately adjusted to take into account the

        occurrence, during the period commencing on the first of the Trading

        Days during such 20 Trading Day period and ending on the applicable date

        of determination, of any event that would result in an adjustment of the

        Conversion Rate under this Certificate of Designation.

 

           "Market Value" shall mean the average closing price of the Common

        Stock for a five consecutive Trading Day period on the NYSE (or such

        other national securities exchange or automated quotation system on

        which the Common Stock is then listed or authorized for quotation or, if

        the Common Stock is not so listed or authorized for quotation, an amount

        determined in good faith by the Board of Directors to be the fair value

        of the Common Stock).

 

           "Maximum Conversion Rate" shall have the meaning given to it in

        Section 7(f)(viii).

 

           "NYSE" shall mean the New York Stock Exchange, Inc.

 

           "Officer" means the Chairman of the Board of Directors, the

        President, any Vice President, the Treasurer, the Secretary or any

        Assistant Secretary of the Corporation.

 

           "Officers' Certificate" means a certificate signed by two Officers.

 

           "Opinion of Counsel" means a written opinion from legal counsel who

        is acceptable to the Transfer Agent. The counsel may be an employee of

        or counsel to the Corporation or the Transfer Agent.

 

           "Parity Stock" shall mean any class of capital stock or series of

        preferred stock established as of or after the Issue Date by the Board

        of Directors, the terms of which expressly provide that such class or

        series will rank on parity with the 4.50% Convertible Preferred Stock as

        to dividend rights or rights upon the liquidation, winding-up or

        dissolution of the Corporation.

 

           "Paying Agent" means any Person authorized by the Corporation to pay

        the dividends or Fundamental Change Purchase Price on any of the shares

        of 4.50% Convertible Preferred Stock on behalf of the Corporation.

        Initially, the Paying Agent shall be the Corporation.

 

           "Person" shall mean any individual, corporation, general partnership,

        limited partnership, limited liability partnership, joint venture,

        association, joint-stock company, trust, limited liability company,

        unincorporated organization or government or any agency or political

        subdivision thereof.

 

           "Registration Default" shall have the meaning given to it in Section

        3(b).

 

           "Registration Rights Agreement" means the Registration Rights

        Agreement dated as of December 5, 2003, among the Corporation, Citigroup

        Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated

        and the certain other initial purchasers of the 4.50% Convertible

        Preferred Stock.

 

           "SEC" or "Commission" shall mean the Securities and Exchange

        Commission.

 

           "Securities Act" means the Securities Act of 1933, as amended.

 

 

 

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           "Security Register" means the security register recording the holders

        of 4.50% Convertible Preferred Stock kept at the offices of the

        Corporation.

 

           "Security Registrar" shall be the Person holding the Security

        Register, and the Corporation will initially be designated as the

        Security Registrar.

 

           "Senior Stock" shall mean each class of capital stock or series of

        preferred stock established after the Issue Date by the Board of

        Directors, the terms of which expressly provide that such class or

        series will rank senior to the 4.50% Convertible Preferred Stock as to

        dividend rights or rights upon the liquidation, winding-up or

        dissolution of the Corporation.

 

           "Shelf Registration Statement" shall mean a shelf registration

        statement filed with the SEC to cover resales of Transfer Restricted

        Securities by holders thereof, as required by the Registration Rights

        Agreement.

 

           "Spin-Off Market Price" per share of Common Stock of the Corporation

        or the Equity Interests in a Subsidiary or other business unit of the

        Corporation on any day means the average of the daily Last Reported Sale

        Prices for the 10 consecutive Trading Days commencing on and including

        the fifth Trading Day after the ex date with respect to the issuance or

        distribution requiring such computations. As used herein, the term "ex

        date," when used with respect to any issuance or distribution, shall

        mean the first date on which the security trades regular way on the NYSE

        or such other national regional exchange or market in which the security

        trades without the right to receive such issuance or distribution.

 

           "Subsidiary" means a Person more than 50% of the outstanding voting

        stock of which is owned, directly or indirectly, by the Corporation or

        by one or more other Subsidiaries, or by the Corporation and one or more

        other Subsidiaries. For the purposes of this definition, "voting stock"

        means stock which ordinarily has voting power of the election of

        directors, whether at all times or only so long as no senior class of

        stock has such voting power by reason of any contingency.

 

           "Trading Day" means (i) if the applicable security is listed,

        admitted for trading or quoted on the NYSE, the NASDAQ National Market

        or another national security exchange, a day on which the NYSE, the

        NASDAQ National Market or another national security exchange is open for

        business or (ii) if the applicable security is not so listed, admitted

        for trading or quoted, any day other than a Saturday or Sunday or a day

        on which banking institutions in the State of New York are authorized or

        obligated by law, regulation or executive order to close.

 

           "Trading Exception" shall have the meaning given to it in Section

        7(a)(ii).

 

           "Trading Price" of the 4.50% Convertible Preferred Stock on any date

        of determination means the average of the secondary market bid

        quotations per share of 4.50% Convertible Preferred Stock obtained by

        the Conversion Agent for $5,000,000 Liquidation Preference of the 4.50%

        Convertible Preferred Stock at approximately 3:30 p.m., New York City

        time, on such determination date from three independent nationally

        recognized securities dealers the Corporation selects, provided that if

        three such bids cannot reasonably be obtained by the Conversion Agent,

        but two such bids are obtained, then the average of the two bids shall

        be used, and if only one such bid can reasonably be obtained by the

        Conversion Agent, this one bid shall be used. If the Conversion Agent

        cannot reasonably obtain at least one bid for

 

 

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        $5,000,000 Liquidation Preference of the 4.50% Convertible Preferred

        Stock from a nationally recognized securities dealer, then the Trading

        Price will be deemed to be less than 95% of the product of the sale

        price of Common Stock and the then applicable Conversion Rate.

 

           "Transfer Agent" shall mean the Corporation's duly appointed transfer

        agent for the 4.50% Convertible Preferred Stock. Initially, the

        Corporation will be the Transfer Agent.

 

           "Transfer Restricted Securities" shall mean each share of 4.50%

        Convertible Preferred Stock (or the shares of Common Stock into which

        such share of 4.50% Convertible Preferred Stock is convertible) until

        (i) the date on which such security or its predecessor has been

        effectively registered under the Securities Act and disposed of in

        accordance with the Shelf Registration Statement, (ii) the date on which

        such security or predecessor is distributed to the public pursuant to

        Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k)

        under the Securities Act or (iii) the date that such 4.50% Convertible

        Preferred Stock ceases to be outstanding.

 

           "Voting Rights Class" shall have the meaning given to it in Section

        5(a)(i).

 

           "Voting Rights Triggering Event" shall mean the failure of the

        Corporation to pay dividends on the 4.50% Convertible Preferred Stock

        with respect to six or more quarterly periods (whether or not

        consecutive).

 

           "Voting Stock" shall mean, with respect to any Person, securities of

        any class or classes of Capital Stock in such Person entitling the

        holders thereof (whether at all times or only so long as no senior class

        of stock has voting power by reason of contingency) generally to vote in

        the election of members of the Board of Directors or other governing

        body of such Person. For purposes of this definition, "Capital Stock"

        shall mean, with respect to any Person, any and all shares, interests,

        participations or other equivalents (however designated) of corporate

        stock or partnership interests and any and all warrants, options and

        rights with respect thereto (whether or not currently exercisable),

        including each class of common stock and preferred stock of such Person.

 

        3.   Dividends.

 

        (a) The holders of shares of the outstanding 4.50% Convertible Preferred

Stock shall be entitled, when, as and if declared by the Board of Directors out

of funds of the Corporation legally available therefor, to receive cumulative

cash dividends at the rate per annum of 4.50% per share on the Liquidation

Preference (equivalent to $2.25 per annum per share), payable quarterly in

arrears (the "Dividend Rate"). The Dividend Rate may be increased in the

circumstances described in Section 3(b) below. Dividends payable for each full

dividend period will be computed by dividing the Dividend Rate by four and shall

be payable in arrears on each Dividend Payment Date (commencing March 1, 2004)

for the quarterly period ending immediately prior to such Dividend Payment Date,

to the holders of record of 4.50% Convertible Preferred Stock at the close of

business on the Dividend Record Date applicable to such Dividend Payment Date.

Such dividends shall be cumulative from the most recent date as to which

dividends shall have been paid or, if no dividends have been paid, from the

Issue Date (whether or not in any dividend period or periods the Board of

Directors shall have declared such dividends or there shall be funds of the

Corporation legally available for the payment of such dividends) and shall

accumulate on a day-to-day basis, whether or not earned or declared, from and

after the Issue Date. Dividends payable for any partial dividend period shall be

computed on the basis of days elapsed over a 360-day year consisting of twelve

30-

 

 

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day months. Accumulated unpaid dividends accrue and cumulate dividends at the

annual rate of 4.50% and are payable in the manner provided in this Section 3.

 

        (b) If (i) by November 5, 2004, the Shelf Registration Statement has not

been filed with the Commission, (ii) by March 5, 2005, the Shelf Registration

Statement has not been declared effective by the Commission, (iii) after the

Shelf Registration Statement has been declared effective the Corporation fails

to file a post-effective amendment, prospectus supplement, amendment or

supplement to any document incorporated by reference into such prospectus or

document if required by applicable law with the SEC within five business days

after a Holder provides the Corporation with certain required information, if

such filing is necessary to enable the Holder to deliver the prospectus to

purchasers of such Holder's Transfer Restricted Securities, (iv) the Shelf

Registration Statement ceases to be effective or fails to be usable without

being succeeded within 30 days by a post-effective amendment or an additional

registration statement filed and declared effective (other than as permitted in

(iii) above) pursuant to the Exchange Act that cures the failure of the

registration statement to be effective or usable, and (v) the aggregate duration

of any suspension periods in any period exceeds certain limits described in the

Registration Rights Agreement (each such event referred to in clauses (i), (ii),

(iii), (iv) and (v) a "Registration Default"), additional dividends shall

accumulate on the 4.50% Convertible Preferred Stock, from and including the date

on which any such Registration Default shall occur to, but excluding, the date

on which the Registration Default has been cured, at the rate of 0.25% per year

for the first 90 days following such date and at a rate of 0.50% per year

thereafter ("Additional Dividends"). With respect to shares of Common Stock

issued upon conversion of the 4.50% Convertible Preferred Stock, Additional

Dividends will accumulate on the then applicable conversion price from and

including the date on which any such Registration Default shall occur to, but

excluding, the date on which the Registration Default has been cured, at the

rate of 0.25% per year for the first 90 days following such date and at a rate

of 0.50% per year thereafter. Except as mentioned above, the Corporation will

have no other liabilities for monetary damages with respect to its registration

obligations. The receipt of Additional Dividends will be the sole monetary

remedy available to a Holder if the Corporation fails to meet these obligations.

 

        (c) No dividend will be declared or paid upon, or any sum set apart for

the payment of dividends upon, any outstanding share of the 4.50% Convertible

Preferred Stock with respect to any dividend period unless all dividends for all

preceding dividend periods have been declared and paid or declared and a

sufficient sum set apart for the payment of such dividend upon all outstanding

shares of 4.50% Convertible Preferred Stock.

 

        (d) No dividends or other distributions (other than a dividend or

distribution payable solely in shares of Parity Stock or Junior Stock (in the

case of Parity Stock) or Junior Stock (in the case of Junior Stock) and other

than cash paid in lieu of fractional shares) may be declared, made or paid, or

set apart for payment upon, any Parity Stock or Junior Stock, nor may any Parity

Stock or Junior Stock be redeemed, purchased or otherwise acquired for any

consideration (or any money paid to or made available for a sinking fund for the

redemption of any Parity Stock or Junior Stock) by or on behalf of the

Corporation (except by conversion into or exchange for shares of Parity Stock or

Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of

Junior Stock)), unless full Accumulated Dividends shall have been or

contemporaneously are declared and paid, or are declared and a sum sufficient

for the payment thereof is set apart for such payment, on the 4.50% Convertible

Preferred Stock and any Parity Stock for all dividend payment periods

terminating on or prior to the date of such declaration, payment, redemption,

purchase or acquisition. Notwithstanding the foregoing, if full dividends have

not been paid on the 4.50% Convertible Preferred Stock and any Parity Stock,

dividends may be declared and paid on the 4.50% Convertible Preferred Stock and

such Parity Stock so long as the dividends are declared and paid pro rata so

that the amounts of dividends declared per share on the 4.50% Convertible

Preferred Stock and such

 

 

                                       10

<PAGE>

 

Parity Stock will in all cases bear to each other the same ratio that

accumulated and unpaid dividends per share on the shares of 4.50% Convertible

Preferred Stock and such other Parity Stock bear to each other.

 

        (e) Holders of shares of 4.50% Convertible Preferred Stock shall not be

entitled to any dividends on the 4.50% Convertible Preferred Stock, whether

payable in cash, property or stock, in excess of full cumulative dividends and

Additional Dividends (if any).

 

        (f) The holders of shares of 4.50% Convertible Preferred Stock at the

close of business on a Dividend Record Date will be entitled to receive the

dividend payment on those shares on the corresponding Dividend Payment Date

notwithstanding the subsequent conversion thereof or the Corporation's default

in payment of the dividend due on that Dividend Payment Date. However, shares of

4.50% Convertible Preferred Stock surrendered for conversion during the period

between the close of business on any Dividend Record Date and the close of

business on the Business Day immediately preceding the applicable Dividend

Payment Date must be accompanied by payment of an amount equal to the dividend

payable on the shares on that Dividend Payment Date; provided, however, that no

such payment need be made if (1) the Corporation has specified a Mandatory

Conversion Date that is after a Dividend Record Date and on or prior to the

immediately following Dividend Payment Date or (2) any accumulated and unpaid

dividends exist at the time of conversion with respect to such shares of 4.50%

Convertible Preferred Stock to the extent of such accumulated and unpaid

dividends. A holder of shares of 4.50% Convertible Preferred Stock on a Dividend

Record Date who (or whose transferee) tenders any shares for conversion on the

corresponding Dividend Payment Date will receive the dividend payable by the

Corporation on the 4.50% Convertible Preferred Stock on that date, and the

converting holder need not include payment in the amount of such dividend upon

surrender of shares of 4.50% Convertible Preferred Stock for conversion. Except

as provided above with respect to a voluntary conversion pursuant to Section 7,

the Corporation shall make no payment or allowance for unpaid dividends, whether

or not in arrears, on converted shares or for dividends on the shares of Common

Stock issued upon conversion.

 

        (g) In any case where any Dividend Payment Date or Conversion Date

(including upon the occurrence of a Fundamental Change) of any 4.50% Convertible

Preferred Stock shall not be a Business Day, at any place of payment, then

payment of dividends (and Additional Dividends, if any) need not be made on such

date, but may be made on the next succeeding Business Day at such place of

payment with the same force and effect as if made on the dividend payment date

or Conversion Date (including upon the occurrence of a Fundamental Change); and

no interest shall accumulate on the amount so payable for the period from and

after such Dividend Payment Date or Conversion Date, as the case may be, to such

Business Day.

 

        (h) The Paying Agent shall return to the Corporation upon written

request any money or property held by it for the payment of any amount with

respect to the 4.50% Convertible Preferred Stock that remains unclaimed for two

years, provided, however, that the Paying Agent, before being required to make

any such return, shall at the expense of the Corporation cause to be published

once in a newspaper of general circulation in The City of New York or mail to

each such Holder notice that such money or property remains unclaimed and that,

after a date specified therein, which shall not be less than 30 days from the

date of such publication or mailing, any unclaimed money or property then

remaining shall be returned to the Corporation. After return to the Corporation,

Holders entitled to the money or property must look to the Corporation for

payment as general creditors unless an applicable abandoned property law

designates another Person.

 

 

 

 

 

                                       11

<PAGE>

 

        4.  Fundamental Change.

 

        (a) Purchase at the Option of the Holder Upon a Fundamental Change. Each

Holder shall have the right, at such Holder's option, to require the Corporation

to purchase any or all of such Holder's 4.50% Convertible Preferred Stock for

cash or a check on the date that is no earlier than 60 days nor later than 90

days after the date of the Corporation Notice of the occurrence of such

Fundamental Change (subject to extension to comply with applicable law, as

provided in Section 4(h) (the "Fundamental Change Purchase Date"). The 4.50%

Convertible Preferred Stock shall be repurchased in integral multiples of $50.00

(representing the Liquidation Preference). The Corporation shall purchase such

4.50% Convertible Preferred Stock at a price (the "Fundamental Change Purchase

Price") equal to 100% of the Liquidation Price of the number of shares of 4.50%

Convertible Preferred Stock to be purchased plus accumulated and unpaid

dividends, including Additional Dividends, if any, to the Fundamental Change

Purchase Date.

 

        (b) Notice of Fundamental Change. The Corporation, or at its request

(which must be received by the Paying Agent at least three Business Days (or

such lesser period as agreed to by the Paying Agent) prior to the date the

Paying Agent is requested to give such notice as described below), the Paying

Agent, in the name of and at the expense of the Corporation, shall mail to all

Holders a Corporation Notice of the occurrence of a Fundamental Change and of

the purchase right arising as a result thereof, including the information

required by Section 4(e) hereof, on or before the 30th day after the occurrence

of such Fundamental Change.

 

        (c) Exercise of Option. For 4.50% Convertible Preferred Stock to be so

purchased at the option of the Holder, the Paying Agent must receive at its

office in Jackson, Michigan, or any other offices of the Paying Agent maintained

for such purposes, such shares of 4.50% Convertible Preferred Stock duly

endorsed for transfer, together with a written notice of purchase in the form

attached hereto as Exhibit A (a "Fundamental Change Purchase Notice") duly

completed, on or before the 30th day prior to the Fundamental Change Purchase

Date, subject to extension to comply with applicable law. The Fundamental Change

Purchase Notice shall state:

 

       (i)   if certificated, the certificate numbers of the shares of 4.50%

             Convertible Preferred Stock which the Holder shall deliver to be

             purchased, or, if not certificated, the Fundamental Change Purchase

             Notice must comply with appropriate Depository procedures;

 

       (ii)  the number of shares of 4.50% Convertible Preferred Stock which the

             Holder shall deliver to be purchased, which portion must be $50.00

             or an integral multiple thereof; and

 

       (iii) that such 4.50% Convertible Preferred Stock shall be purchased as

             of the Fundamental Change Purchase Date pursuant to the terms and

             conditions specified in the 4.50% Convertible Preferred Stock and

             in this Certificate of Designation.

 

       (d) Procedures. The Corporation shall purchase from a Holder, pursuant to

this Section 4, shares of 4.50% Convertible Preferred Stock or multiples of

$50.00 if so requested by such Holder.

 

       Any purchase by the Corporation contemplated pursuant to the provisions

of this Section 4 shall be consummated by the delivery of the Fundamental Change

Purchase Price to be received by the Holder promptly following the later of the

Fundamental Change Purchase Date or the time of book-entry transfer or delivery

of the 4.50% Convertible Preferred Stock.

 

 

 

 

                                       12

<PAGE>

 

       Notwithstanding anything herein to the contrary, any Holder delivering to

the Paying Agent the Fundamental Change Purchase Notice contemplated by Section

4(c) hereof shall have the right at any time prior to the close of business on

the Business Day prior to the Fundamental Change Purchase Date to withdraw such

Fundamental Change Purchase Notice (in whole or in part) by delivery of a

written notice of withdrawal to the Paying Agent in accordance with Section 4(f)

hereof.

 

       The Paying Agent shall promptly notify the Corporation of the receipt by

it of any Fundamental Change Purchase Notice or written notice of withdrawal

thereof.

 

       On or before 10:00 a.m. (New York City time) on the Fundamental Change

Purchase Date, the Corporation shall deposit with the Paying Agent (or if the

Corporation or an Affiliate of the Corporation is acting as the Paying Agent,

shall segregate and hold in trust) money sufficient to pay the aggregate

Fundamental Change Purchase Price of the 4.50% Convertible Preferred Stock to be

purchased pursuant to this Section 4. Payment by the Paying Agent of the

Fundamental Change Purchase Price for such 4.50% Convertible Preferred Stock

shall be made promptly following the later of the Fundamental Change Purchase

Date or the time of book-entry transfer or delivery of such 4.50% Convertible

Preferred Stock. If the Paying Agent holds, in accordance with the terms of this

Certificate of Designation, money sufficient to pay the Fundamental Change

Purchase Price of such 4.50% Convertible Preferred Stock on the Business Day

following the Fundamental Change Purchase Date, then, on and after such date,

such 4.50% Convertible Preferred Stock shall cease to be outstanding and

dividends (including Additional Dividends, if any) on such 4.50% Convertible

Preferred Stock shall cease to accumulate, whether or not book-entry transfer of

such 4.50% Convertible Preferred Stock is made or such 4.50% Convertible

Preferred Stock is delivered to the Paying Agent, and all other rights of the

Holder shall terminate (other than the right to receive the Fundamental Change

Purchase Price upon delivery or transfer of the 4.50% Convertible Preferred

Stock). Nothing herein shall preclude any withholding tax required by law.

 

       The Corporation shall require each Paying Agent to agree in writing that

the Paying Agent shall hold in trust for the benefit of Holders all money held

by the Paying Agent for the payment of the Fundamental Change Purchase Price. If

the Corporation or an Affiliate of the Corporation acts as Paying Agent, it

shall segregate the money held by it as Paying Agent and hold it as a separate

trust fund.

 

       All questions as to the validity, eligibility (including time of receipt)

and acceptance of any 4.50% Convertible Preferred Stock pursuant to a

Fundamental Change shall be determined by the Corporation, whose determination

shall be final and binding.

 

       (e) Notice of Fundamental Change. The Corporation shall send notices

(each, a "Corporation Notice") to the Holders (and to beneficial owners as

required by applicable law) at their addresses shown in the Security Register

maintained by the Security Registrar, and delivered to the Paying Agent on or

before the 30th day after the occurrence of the Fundamental Change ("Corporation

Notice Date"). Each Corporation Notice shall include a form of Fundamental

Change Purchase Notice to be completed by a Holder and shall state:

 

       (i)   the applicable Fundamental Change Purchase Price, excluding

             accumulated and unpaid dividends, Conversion Rate at the time of

             such notice (and any adjustments to the Conversion Rate) and, to

             the extent known at the time of such notice, the amount of

             dividends (including Additional Dividends, if any), if any, that

             will be payable with respect to the 4.50% Convertible Preferred

             Stock on the applicable Fundamental Change Purchase Date;

 

 

 

 

                                       13

<PAGE>

 

 

       (ii)   the events causing the Fundamental Change and the date of the

              Fundamental Change;

 

       (iii)  the Fundamental Change Purchase Date;

 

       (iv)   the last date on which a Holder may exercise its purchase right;

 

       (v)    the name and address of the Paying Agent and the Conversion Agent;

 

       (vi)   that the 4.50% Convertible Preferred Stock must be surrendered to

              the Paying Agent to collect payment of the Fundamental Change

              Purchase Price;

 

       (vii)  that the 4.50% Convertible Preferred Stock as to which a

              Fundamental Change Purchase Notice has been given may be converted

              only if the applicable Fundamental Change Purchase Notice has been

              withdrawn in accordance with the terms of this Certificate of

              Designation;

 

       (viii) that the Fundamental Change Purchase Price for any of the 4.50%

              Convertible Preferred Stock as to which a Fundamental Change

              Purchase Notice has been given and not withdrawn shall be paid by

              the Paying Agent promptly following the later of the Fundamental

              Change Purchase Date or the time of book-entry transfer or

              delivery of such 4.50% Convertible Preferred Stock;

 

       (ix)   the procedures the Holder must follow under this Section 4;

 

       (x)    briefly, the conversion rights of the 4.50% Convertible Preferred

              Stock;

 

       (xi)   that, unless the Corporation defaults in making payment of such

              Fundamental Change Purchase Price on the 4.50% Convertible

              Preferred Stock covered by any Fundamental Change Purchase Notice,

              dividends (including Additional Dividends, if any) will cease to

              accumulate on and after the Fundamental Change Purchase Date;

 

       (xii)  the CUSIP or ISIN number of the 4.50% Convertible Preferred Stock;

              and

 

       (xiii) the procedures for withdrawing a Fundamental Change Purchase

              Notice.

 

       In connection with providing such Corporation Notice, the Corporation

will issue a press release and publish a notice containing the information in

such Corporation Notice in a newspaper of general circulation in The City of New

York or publish such information on the Corporation's then existing Web site or

through such other public medium as the Corporation may use at the time.

 

       At the Corporation's request, made at least five Business Days prior to

the date upon which such notice is to be mailed, and at the Corporation's

expense, the Paying Agent shall give the Corporation Notice in the Corporation's

name; provided, however, that, in all cases, the text of the Corporation Notice

shall be prepared by the Corporation.

 

       (f) Effect of Fundamental Change Purchase Notice. Upon receipt by the

Corporation of the Fundamental Change Purchase Notice specified in this Section

4, the Holder of the 4.50% Convertible Preferred Stock in respect of which such

Fundamental Change Purchase Notice was given shall (unless such Fundamental

Change Purchase Notice is withdrawn as specified in this Section 4(f))

thereafter be entitled to receive solely the Fundamental Change Purchase Price

with respect to such 4.50% Convertible Preferred Stock. Such Fundamental Change

Purchase Price shall be paid by the Paying Agent to such Holder promptly

following the later of (x) the Fundamental Change Purchase Date with respect to

such 4.50% Convertible Preferred Stock (provided the

 

 

                                       14

<PAGE>

 

 

conditions in this Section 4 have been satisfied) and (y) the time of delivery

or book-entry transfer of such 4.50% Convertible Preferred Stock to the Paying

Agent by the Holder thereof in the manner required by this Section 4. 4.50%

Convertible Preferred Stock in respect of which a Fundamental Change Purchase

Notice has been given by the Holder thereof may not be converted for shares of

Common Stock on or after the date of the delivery of such Fundamental Change

Purchase Notice unless such Fundamental Change Purchase Notice has first been

validly withdrawn as specified in this Section 4(f). Payment of the Fundamental

Change Purchase Price for shares of 4.50% Convertible Preferred Stock in

registered, certificated form ("Certificated 4.50% Convertible Preferred Stock")

for which a Fundamental Change Purchase Notice has been delivered and not

withdrawn is conditioned upon delivery of such Certificated 4.50% Convertible

Preferred Stock (together with necessary endorsements) to the Paying Agent at

its office in Jackson, Michigan, or any other office of the Paying Agent

maintained for such purpose, at any time (whether prior to, on or after the

Fundamental Change Purchase Date) after the delivery of such Fundamental Change

Purchase Notice. Payment of the Fundamental Change Purchase Price for such

Certificated 4.50% Convertible Preferred Stock will be made promptly following

the later of the Fundamental Change Purchase Date or the time of delivery of

such Certificated 4.50% Convertible Preferred Stock.

 

       If the Paying Agent holds, in accordance with the terms of this

Certificate of Designation, money sufficient to pay the Fundamental Change

Purchase Price of shares of 4.50% Convertible Preferred Stock on the Business

Day following the Fundamental Change Purchase Date for such 4.50% Convertible

Preferred Stock, then, on and after such date, dividends on such 4.50%

Convertible Preferred Stock will cease to accumulate, whether or not such 4.50%

Convertible Preferred Stock is delivered to the Paying Agent, and all other

rights of the Holder shall terminate (other than the right to receive the

Fundamental Change Purchase Price upon delivery of the 4.50% Convertible

Preferred Stock).

 

       A Fundamental Change Purchase Notice may be withdrawn by means of a

written notice of withdrawal delivered to the office of the Paying Agent at any

time prior to 5:00 p.m. New York City time on the Business Day prior to the

Fundamental Change Purchase Date to which it relates specifying:

 

       (i)   if certificated, the certificate number of 4.50% Convertible

             Preferred Stock in respect of which such notice of withdrawal is

             being submitted, or, if not certificated, the written notice of

             withdrawal must comply with appropriate Depository procedures;

 

       (ii)  the number of shares of 4.50% Convertible Preferred Stock with

             respect to which such notice of withdrawal is being submitted; and

 

       (iii) the number of shares of 4.50% Convertible Preferred Stock, if any,

             which remains subject to the original Fundamental Change Purchase

             Notice and which have been or shall be delivered for purchase by

             the Corporation.

 

       (g) 4.50% Convertible Preferred Stock Purchased in Part. Any shares of

4.50% Convertible Preferred Stock that are to be purchased only in part shall be

surrendered (in physical or book-entry form) at the office of the Paying Agent

(with, if the Corporation so requires, due endorsement by, or a written

instrument of transfer in form satisfactory to the Corporation duly executed by,

the Holder thereof or such Holder's attorney duly authorized in writing) and the

Corporation shall execute and the Transfer Agent shall authenticate and deliver

to the Holder of such 4.50% Convertible Preferred Stock, without service charge,

new shares of 4.50% Convertible Preferred Stock, as requested by such Holder in

an amount equal to, and in exchange for, the portion of the

 

 

 

 

                                       15

<PAGE>

 

 

Liquidation Preference of the 4.50% Convertible Preferred Stock so surrendered

which is not purchased.

 

       (h) Covenant to Comply with Securities Laws Upon Purchase of the 4.50%

Convertible Preferred Stock. In connection with any offer to purchase 4.50%

Convertible Preferred Stock under this Section 4, the Corporation shall, to the

extent applicable: (i) comply with Rules 13e-4 and 14e-1 (and any successor

provisions thereto) under the Exchange Act, if applicable; (ii) file the related

Schedule TO (or any successor schedule, form or report) under the Exchange Act,

if applicable; and (iii) otherwise comply with all applicable federal and state

securities laws so as to permit the rights and obligations under this Section 4

hereof to be exercised in the time and in the manner specified in this Section

4.

 

       (i) Repayment to the Corporation. The Paying Agent shall return to the

Corporation any cash or property that remains unclaimed as provided in the 4.50%

Convertible Preferred Stock, together with interest that the Paying Agent has

agreed to pay, if any, held by it for the payment of a Fundamental Change

Purchase Price; provided, however, that to the extent that the aggregate amount

of cash or property deposited by the Corporation pursuant to this Section 4

exceeds the aggregate Fundamental Change Purchase Price of the 4.50% Convertible

Preferred Stock or portions thereof which the Corporation is obligated to

purchase as of the Fundamental Change Purchase Date, then promptly on and after

the Business Day following the Fundamental Change Purchase Date, the Paying

Agent shall return any such excess to the Corporation together with interest

that the Paying Agent has agreed to pay, if any.

 

       (j) Officers' Certificate. At least five Business Days before the

Corporation Notice Date, the Corporation shall deliver an Officers' Certificate

to the Paying Agent (provided, that, at the Corporation's option, the matters to

be addressed in such Officers' Certificate may be divided among two such

certificates) specifying:

 

       (i)   the manner of payment selected by the Corporation; and

 

       (ii)  whether the Corporation desires the Paying Agent to give the

             Corporation Notice required by Section 4(e) hereof.

 

        5.   Voting.

 

       (a) The shares of 4.50% Convertible Preferred Stock shall have no voting

rights except as set forth below or as otherwise required by Michigan law from

time to time:

 

       (i)   If and whenever at any time or times a Voting Rights Triggering

             Event occurs, then the holders of shares of 4.50% Convertible

             Preferred Stock, voting as a single class with any other 4.50%

             Convertible Preferred Stock or preference securities having similar

             voting rights that are exercisable (the "Voting Rights Class"),

             will be entitled at the next regular or special meeting of

             shareholders of the Corporation to elect two additional directors

             of the Corporation, unless the Board of Directors is comprised of

             fewer than six directors at such time, in which case the Voting

             Rights Class shall be entitled to elect one additional director.

             Upon the election of any such additional directors, the number of

             directors that comprise the Board of Directors shall be increased

             by such number of additional directors.

 

       (ii)  Such voting rights may be exercised at a special meeting of the

             holders of the shares of the Voting Rights Class, called as

             hereinafter provided, or at any annual meeting of

 

 

 

 

 

                                       16

<PAGE>

 

             shareholders held for the purpose of electing directors, and

             thereafter at each such annual meeting until such time as all

             dividends in arrears on the shares of 4.50% Convertible Preferred

             Stock shall have been paid in full, at which time or times such

             voting rights and the term of the directors elected pursuant to

             Section 5(a)(i) shall terminate.

 

       (iii) At any time when such voting rights shall have vested in holders of

             shares of the Voting Rights Class, an Officer of the Corporation

             may call, and, upon written request of the record holders of shares

             representing at least twenty-five percent (25%) of the voting power

             of the shares then outstanding of the Voting Rights Class,

             addressed to the Secretary of the Corporation, shall call a special

             meeting of the holders of shares of the Voting Rights Class. Such

             meeting shall be held at the earliest practicable date upon the

             notice required for annual meetings of shareholders at the place

             for holding annual meetings of shareholders of the Corporation, or,

             if none, at a place designated by the Board of Directors.

             Notwithstanding the provisions of this Section 5(a)(iii), no such

             special meeting shall be called during a period within the 60 days

             immediately preceding the date fixed for the next annual meeting of

             shareholders, in which such case the election of directors pursuant

             to Section 5(a)(i) shall be held at such annual meeting of

             shareholders.

 

       (iv)  At any meeting held for the purpose of electing directors at which

             the holders of the Voting Rights Class shall have the right to

             elect directors as provided herein, the presence in person or by

             proxy of the holders of shares representing more than fifty percent

             (50%) in voting power of the then outstanding shares of the Voting

             Rights Class shall be required and shall be sufficient to

             constitute a quorum of such class for the election of directors by

             such class. The affirmative vote of the holders of shares of 4.50%

             Convertible Preferred Stock constituting a majority of the shares

             of 4.50% Convertible Preferred Stock present at such meeting, in

             person or by proxy shall be sufficient to elect any such director.

 

       (v)   Any director elected pursuant to the voting rights created under

             this Section 5(a) shall hold office until the next annual meeting

             of shareholders (unless such term has previously terminated

             pursuant to Section 5(a)(ii)) and any vacancy in respect of any

             such director shall be filled only by vote of the remaining

             director so elected by holders of the Voting Rights Class, or, if

             there be no such remaining director, by the holders of shares of

             the Voting Rights Class at a special meeting called in accordance

             with the procedures set forth in this Section 5, or, if no such

             special meeting is called, at the next annual meeting of

             shareholders. Upon any termination of such voting rights, the term

             of office of all directors elected pursuant to this Section 5 shall

             terminate.

 

       (vi)  So long as any shares of 4.50% Convertible Preferred Stock remain

             outstanding, unless a greater percentage shall then be required by

             law, the Corporation shall not, without the affirmative vote or

             consent of the holders of all of the outstanding 4.50% Convertible

             Preferred Stock voting or consenting, as the case may be,

             separately as one class, (i) create, authorize or issue any class

             or series of Senior Stock (or any security convertible into Senior

             Stock) or (ii) amend the Articles of Incorporation so as to affect

             adversely the specified rights, preferences, privileges or voting

             rights of holders of shares of 4.50% Convertible Preferred Stock.

 

       (vii) In exercising the voting rights set forth in this Section 5(a),

             each share of 4.50% Convertible Preferred Stock shall be entitled

             to one vote.

 

 

                                       17

<PAGE>

 

       (b) The Corporation may authorize, increase the authorized amount of, or

issue any class or series of Parity Stock or Junior Stock, without the consent

of the holders of 4.50% Convertible

 

       Preferred Stock, and in taking such actions the Corporation shall not be

deemed to have affected adversely the rights, preferences, privileges or voting

rights of holders of shares of 4.50% Convertible Preferred Stock.

 

        6.   Liquidation Rights.

 

       (a) In the event of any liquidation, winding-up or dissolution of the

Corporation, whether voluntary of involuntary, each holder of shares of 4.50%

Convertible Preferred Stock shall be entitled to receive and to be paid out of

the assets of the Corporation available for distribution to its shareholders the

Liquidation Preference plus Accumulated Dividends and Additional Dividends

thereon in preference to the holders of, and before any payment or distribution

is made on, any Junior Stock, including, without limitation, on any Common

Stock.

 

       (b) Neither the sale, conveyance, exchange or transfer (for cash, shares

of stock, securities or other consideration) of all or substantially all the

assets or business of the Corporation (other than in connection with the

liquidation, winding-up or dissolution of its business) nor the merger or

consolidation of the Corporation into or with any other Person shall be deemed

to be a liquidation, winding-up or dissolution, voluntary or involuntary, for

the purposes of this Section 6.

 

       (c) After the payment to the holders of the shares of 4.50% Convertible

Preferred Stock of full preferential amounts provided for in this Section 6, the

holders of 4.50% Convertible Preferred Stock as such shall have no right or

claim to any of the remaining assets of the Corporation.

 

       (d) In the event the assets of the Corporation available for distribution

to the holders of shares of 4.50% Convertible Preferred Stock upon any

liquidation, winding-up or dissolution of the Corporation, whether voluntary or

involuntary, shall be insufficient to pay in full all amounts to which such

holders are entitled pursuant to Section 6(a), no such distribution shall be

made on account of any shares of Parity Stock upon such liquidation, dissolution

or winding-up unless proportionate distributable amounts shall be paid on

account of the shares of 4.50% Convertible Preferred Stock, ratably, in

proportion to the full distributable amounts for which holders of all 4.50%

Convertible Preferred Stock and of any Parity Stock are entitled upon such

liquidation, winding-up or dissolution.

 

        7.  Conversion.

 

       (a)  Conversion Rights. A Holder may convert 4.50% Convertible Preferred

Stock into Common Stock during the periods and upon satisfaction of at least one

of the conditions set forth below:

 

       (i)   in any calendar quarter (and only during such calendar quarter) if

             the Last Reported Sale Price for Common Stock for at least 20

             Trading Days during the period of 30 consecutive Trading Days

             ending on the last Trading Day of the previous calendar quarter is

             greater than or equal to 120% of the Conversion Price per share of

             Common Stock on such last Trading Day;

 

       (ii)  during the five Business Days immediately following any ten

             consecutive Trading Day period in which the Trading Price per

             Liquidation Preference of 4.50% Convertible Preferred Stock (as

             determined following a request by a Holder of 4.50% Convertible

             Preferred Stock in accordance with the procedures described herein)

             for each day of that

 

                                       18

<PAGE>

 

             period was less than 95% of the product of the sale price of Common

             Stock and the then applicable Conversion Rate (the "Trading

             Exception"); provided, however, that a Holder may not convert

             its 4.50% Convertible Preferred Stock if the average closing sale

             price of Common Stock for such ten consecutive Trading Day period

             is between the then current Conversion Price and 120% of the then

             applicable Conversion Price; in connection with any conversion upon

             satisfaction of such Trading Price condition, the Conversion Agent

             shall have no obligation to determine the Trading Price unless the

             Corporation has requested such determination; and the Corporation

             shall have no obligation to make such request unless the Holder

             provides reasonable evidence that the Trading Price would be less

             than 95% of the product of the sale price of Common Stock and the

             then applicable Conversion Rate; at which time, the Corporation

             shall instruct the Conversion Agent to determine the Trading Price

             beginning on the next Trading Day and on each successive Trading

             Day until the Trading Price is greater than or equal to 95% of

             the product of the sale price of Common Stock and the then

             applicable Conversion Rate;

 

       (iii) the Corporation becomes a party to a consolidation, merger or

             binding share exchange pursuant to which the Common Stock would be

             converted into cash or property (other than securities), in which

             case a Holder may surrender 4.50% Convertible Preferred Stock for

             conversion at any time from and after the date which is 15 days

             prior to the anticipated effective date for the transaction until

             15 days after the actual effective date of such transaction; or

 

       (iv)  the Corporation elects to (i) distribute to all holders of Common

             Stock assets, debt securities or rights to purchase securities of

             the Corporation, which distribution has a per share value as

             determined by the Board of Directors exceeding 15% of the Last

             Reported Sale Price of a share of Common Stock on the Trading Day

             immediately preceding the declaration date for such distribution,

             or (ii) distribute to all holders of Common Stock rights entitling

             them to purchase, for a period expiring within 60 days after the

             date of such distribution, shares of Common Stock at less than the

             Last Reported Sale Price of Common Stock on the Trading Day

             immediately preceding the declaration date of the distribution. In

             the case of the foregoing clauses (i) and (ii), the Corporation

             must notify the Holders at least 20 Business Days immediately prior

             to the ex-dividend date for such distribution. Once the Corporation

             has given such notice, Holders may surrender their 4.50%

             Convertible Preferred Stock for conversion at any time thereafter

             until the earlier of the close of business on the Business Day

             immediately prior to the ex-dividend date or the Corporation's

             announcement that such distribution will not take place; provided,

             however, that a Holder may not exercise this right to convert if

             the Holder may participate in the distribution without conversion.

             As used herein, the term "ex dividend date," when used with respect

             to any issuance or distribution, shall mean the first date on which

             the Common Stock trades regular way on such exchange or in such

             market without the right to receive such issuance or distribution.

 

         The initial Conversion Rate is 5.0541 shares of Common Stock per share

of 4.50% Convertible Preferred Stock, subject to adjustment in certain events as

described herein. The Corporation shall deliver cash or a check in lieu of any

fractional share of Common Stock. A Holder may convert fewer than all of its

4.50% Convertible Preferred Stock so long as the 4.50% Convertible Preferred

Stock converted is an integral multiple of the Liquidation Preference.

 

 

 

 

                                       19

<PAGE>

 

 

         Holders of 4.50% Convertible Preferred Stock at the close of business

on a Dividend Record Date will receive payment of dividends, payable on the

corresponding Dividend Payment Date notwithstanding the conversion of such 4.50%

Convertible Preferred Stock at any time after the close of business on such

Dividend Record Date. 4.50% Convertible Preferred Stock surrendered for

conversion by a Holder during the period from the close of business on any

Dividend Record Date to the opening of business on the immediately following

Dividend Payment Date must be accompanied by payment of an amount equal to the

dividend that the Holder is to receive on such 4.50% Convertible Preferred

Stock; provided, however, that no such payment need be made if (1) the

Corporation has specified a Mandatory Conversion Date that is after a Dividend

Record Date and on or prior to the immediately following Dividend Payment Date

or (2) any accumulated and unpaid dividends exist at the time of conversion with

respect to such shares of 4.50% Convertible Preferred Stock to the extent of

such accumulated and unpaid dividends.

 

         To convert 4.50% Convertible Preferred Stock a Holder must (i) complete

and manually sign the irrevocable conversion notice in the form attached hereto

as Exhibit B (a "Conversion Notice") (or complete and manually sign a facsimile

of such notice) and deliver such notice to the Conversion Agent at its office in

Jackson, Michigan or any other offices of the Conversion Agent maintained by the

Conversion Agent for such purpose, (ii) surrender the shares of 4.50%

Convertible Preferred Stock to the Conversion Agent, (iii) furnish appropriate

endorsements and transfer documents if required by the Conversion Agent or the

Corporation and (iv) pay any transfer or similar tax, if required.

 

         (b) Conversion Procedures. To convert 4.50% Convertible Preferred

Stock, a Holder must satisfy the requirements in this Section 7 and in the 4.50%

Convertible Preferred Stock. The date on which the Holder satisfies all those

requirements is the conversion date (the "Conversion Date"). As soon as

practicable, but in no event later than the fifth Business Day following the

Conversion Date, the Corporation shall update the global security representing

the shares of Common Stock to record the Holder's interest in the Common Stock,

or deliver to the Holder, through the Conversion Agent, a certificate for the

number of full shares of Common Stock issuable upon the conversion and cash or a

check in lieu of any fractional share determined pursuant to Section 7(c)

hereof. The Person in whose name the certificate is registered shall be treated

as a shareholder of record on and after the Conversion Date; provided, however,

that no surrender of 4.50% Convertible Preferred Stock on any date when the

stock transfer books of the Corporation shall be closed shall be effective to

constitute the Person or Persons entitled to receive the shares of Common Stock

upon such conversion as the record holder or holders of such shares of Common

Stock on such date, but such surrender shall be effective to constitute the

Person or Persons entitled to receive such shares of Common Stock as the record

holder or holders thereof for all purposes at the close of business on the next

succeeding day on which such stock transfer books are open; such conversion

shall be at the Conversion Rate in effect on the date that such shares of 4.50%

Convertible Preferred Stock shall have been surrendered for conversion, as if

the stock transfer books of the Corporation had not been closed. Upon conversion

of 4.50% Convertible Preferred Stock, such Person shall no longer be a Holder of

such 4.50% Convertible Preferred Stock.

 

         No payment or adjustment shall be made for dividends on or other

distributions with respect to any Common Stock except as provided in Section

7(f) hereof or as otherwise provided in this Certificate of Designation.

 

         On conversion of 4.50% Convertible Preferred Stock, that portion of

Accumulated Dividends with respect to the converted 4.50% Convertible Preferred

Stock will be deemed canceled, extinguished or forfeited, rather than paid in

full to the Holder thereof through delivery of the

 

 

                                       20

<PAGE>

 

 

Common Stock (together with the cash or check payment, if any, in lieu of

fractional shares) in exchange for the shares of 4.50% Convertible Preferred

Stock being converted pursuant to the provisions hereof, and the Fair Market

Value of such shares of Common Stock (together with any such cash or check

payment in lieu of fractional shares) shall be treated as issued, to the extent

thereof, first in exchange for Accumulated Dividends through the Conversion

Date, and the balance, if any, of such Fair Market Value of such Common Stock

(and any such cash or check payment) shall be treated as issued in exchange for

the Liquidation Preference of the 4.50% Convertible Preferred Stock being

converted pursuant to the provisions hereof.

 

         Upon surrender of 4.50% Convertible Preferred Stock that is converted

in part, the Corporation shall execute, and the Transfer Agent shall

authenticate and deliver to the Holder, new shares of 4.50% Convertible

Preferred Stock in a number equal to the unconverted portion of the shares of

4.50% Convertible Preferred Stock surrendered.

 

         If the last day on which 4.50% Convertible Preferred Stock may be

converted is a legal holiday in a place where a Conversion Agent is located, the

4.50% Convertible Preferred Stock may be surrendered to that Conversion Agent on

the next succeeding day that it is not a legal holiday.

 

         (c) Cash or Check Payments in Lieu of Fractional Shares. The

Corporation shall not issue a fractional share of Common Stock upon conversion

of 4.50% Convertible Preferred Stock. Instead the Corporation shall deliver cash

(or Corporation's check) for the current market value of the fractional share.

The current market value of a fractional share shall be determined to the

nearest 1/10,000th of a share by multiplying the Last Reported Sale Price of a

full share of Common Stock on the Trading Day immediately preceding the

Conversion Date by the fractional amount and rounding the product to the nearest

whole cent.

 

         (d) Taxes on Conversion. If a Holder converts 4.50% Convertible

Preferred Stock, the Corporation shall pay any documentary, stamp or similar

issue or transfer tax due on the issue of shares of Common Stock upon the

conversion. However, the Holder shall pay any such tax which is due because the

Holder requests the shares to be issued in a name other than the Holder's name.

The Conversion Agent may refuse to deliver the certificates representing the

Common Stock being issued in a name other than the Holder's name until the

Conversion Agent receives a sum sufficient to pay any tax which shall be due

because the shares are to be issued in a name other than the Holder's name.

Nothing herein shall preclude any withholding tax required by law.

 

         (e) Covenants of the Corporation. The Corporation shall, prior to

issuance of any 4.50% Convertible Preferred Stock hereunder, and from time to

time as may be necessary, reserve out of its authorized but unissued Common

Stock a sufficient number of shares of Common Stock to permit the conversion of

the 4.50% Convertible Preferred Stock.

 

         All shares of Common Stock delivered upon conversion of the 4.50%

Convertible Preferred Stock shall be newly issued shares or treasury shares,

shall be duly and validly issued and fully paid and nonassessable and shall be

free from preemptive rights and free of any lien or adverse claim.

 

         The Corporation shall endeavor promptly to comply with all federal and

state securities laws regulating the order and delivery of shares of Common

Stock upon the conversion of 4.50% Convertible Preferred Stock, if any, and

shall cause to have listed or quoted all such shares of Common Stock on each

United States national securities exchange or over-the-counter or other domestic

market on which the Common Stock is then listed or quoted.

 

         (f)  Adjustments to Conversion Rate.  The Conversion Rate shall be

adjusted from time to time, without duplication, as follows:

 

 

 

 

                                       21

<PAGE>

 

       (i)   In case the Corporation shall: (a) pay a dividend, or make a

             distribution, exclusively in shares of its capital stock, on the

             Common Stock; (b) subdivide its outstanding Common Stock into a

             greater number of shares; (c) combine its outstanding Common Stock

             into a smaller number of shares; or (d) reclassify its Common

             Stock, the Conversion Rate in effect immediately prior to the

             record date or effective date, as the case may be, for the

             adjustment pursuant to this Section 7(f) as described below, shall

             be adjusted so that the Holder of any 4.50% Convertible Preferred

             Stock thereafter surrendered for conversion shall be entitled to

             receive the number of shares of Common Stock of the Corporation

             which such Holder would have owned or have been entitled to receive

             after the happening of any of the events described above had such

             4.50% Convertible Preferred Stock been converted immediately prior

             to such record date or effective date, as the case may be. An

             adjustment made pursuant to this Section 7(f) shall become

             effective immediately after the applicable record date in the case

             of a dividend or distribution and shall become effective

             immediately after the applicable effective date in the case of

             subdivision, combination or reclassification of the Corporation's

             Common Stock. If any dividend or distribution of the type described

             in clause (a) above is not so paid or made, the Conversion Rate

             shall again be adjusted to the Conversion Rate which would then be

             in effect if such dividend or distribution had not been declared.

 

       (ii)  In case the Corporation shall issue rights or warrants to all

             holders of the Common Stock entitling them (for a period expiring

             within 60 days after the date of issuance of such rights or

             warrants) to subscribe for or purchase Common Stock at a price per

             share less than the Market Price per share of Common Stock on the

             record date fixed for determination of shareholders entitled to

             receive such rights or warrants, the Conversion Rate in effect

             immediately after such record date shall be adjusted so that the

             same shall equal the Conversion Rate determined by multiplying the

             Conversion Rate in effect immediately after such record date by a

             fraction of which (a) the numerator shall be the number of shares

             of Common Stock outstanding on such record date plus the number of

             additional shares of Common Stock offered for subscription or

             purchase, and (b) the denominator shall be the number of shares of

             Common Stock outstanding on such record date plus the number of

             shares which the aggregate offering price of the total number of

             shares so offered would purchase at the Market Price per share of

             Common Stock on the earlier of such record date or the Trading Day

             immediately preceding the ex-dividend date for such issuance of

             rights or warrants. Such adjustment shall be made successively

             whenever any such rights or warrants are issued, and shall become

             effective immediately after the opening of business on the day

             following the record date for the determination of shareholders

             entitled to receive such rights or warrants. To the extent that

             shares of Common Stock are not delivered after the expiration of

             such rights or warrants, the Conversion Rate shall be readjusted to

             the Conversion Rate which 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. If such rights or warrants are not

             so issued, the Conversion Rate shall again be adjusted to be the

             Conversion Rate which would then be in effect if such record date

             for the determination of shareholders entitled to receive such

             rights or warrants had not been fixed. In determining whether any

             rights or warrants entitle the holders to subscribe for or purchase

             shares of Common Stock at less than such Market Price, and in

             determining the aggregate offering price of such shares of Common

             Stock, there shall be taken into account any consideration received

             by the Corporation for such rights or warrants, the value of such

             consideration, if other than cash, to be determined by the Board of

             Directors.

 

 

 

 

                                       22

<PAGE>

 

 

       (iii) In case the Corporation shall, by dividend or otherwise, distribute

             to all holders of Common Stock any assets, debt securities or

             rights or warrants to purchase any of its securities (excluding (a)

             any dividend, distribution or issuance covered by those referred to

             in Section 7(f)(i) or Section 7(f)(ii) hereof and (b) any dividend

             or distribution paid exclusively in cash) (any of the foregoing

             hereinafter in this Section 7(f)(iii) called the "Distributed

             Assets or Securities") in an aggregate amount per share of Common

             Stock that, combined together with the aggregate amount of any

             other such distributions to all holders of its Common Stock made

             within the 12 months preceding the date of payment of such

             distribution, and in respect of which no adjustment pursuant to

             this Section 7(f)(iii) has been made, exceeds 15% of the Market

             Price on the Trading Day immediately preceding the declaration of

             such distribution, then the Conversion Rate shall be adjusted so

             that the same shall equal the Conversion Rate determined by

             multiplying the Conversion Rate in effect immediately prior to the

             close of business on the record date mentioned below by a fraction

             of which (A) the numerator shall be the Market Price per share of

             the Common Stock on the earlier of such record date or the Trading

             Day immediately preceding the ex-dividend date for such dividend or

             distribution, and (B) the denominator shall be (1) the Market Price

             per share of the Common Stock on the earlier of such record date or

             the Trading Day immediately preceding the ex-dividend date for such

             dividend or distribution less (2) the Fair Market Value on the

             earlier of such record date or the Trading Day immediately

             preceding the ex-dividend date for such dividend or distribution

             (as determined by the Board of Directors, whose determination shall

             be conclusive, and described in a certificate filed with the Paying

             Agent) of the Distributed Assets or Securities so distributed

             applicable to one share of Common Stock. Such adjustment shall

             become effective immediately after the record date for the

             determination of shareholders entitled to receive such

             distribution; provided, however, that, if (a) the Fair Market Value

             of the portion of the Distributed Assets or Securities so

             distributed applicable to one share of Common Stock is equal to or

             greater than the Market Price of the Common Stock on the record

             date for the determination of shareholders entitled to receive such

             distribution or (b) the Market Price of the Common Stock on the

             record date for the determination of shareholders entitled to

             receive such distribution is greater than the Fair Market Value per

             share of such Distributed Assets or Securities by less than $1.00,

             then, in lieu of the foregoing adjustment, adequate provision shall

             be made so that each Holder shall have the right to receive upon

             conversion, in addition to the shares of Common Stock, the kind and

             amount of assets, debt securities, or rights or warrants comprising

             the Distributed Assets or Securities the Holder would have received

             had such Holder converted such 4.50% Convertible Preferred Stock

             immediately prior to the record date for the determination of

             shareholders entitled to receive such distribution. In the event

             that such distribution is not so paid or made, the Conversion Rate

             shall again be adjusted to the Conversion Rate which would then be

             in effect if such distribution had not been declared.

 

       (iv)  In case the Corporation shall make (a) any distributions, by

             dividend or otherwise, during any quarterly fiscal periods

             consisting exclusively of cash to all holders of outstanding shares

             of Common Stock in an aggregate amount that, together with (b)

             other all-cash or all-check distributions made to all holders of

             outstanding shares of Common Stock during such quarterly fiscal

             period, and (c) any cash and the Fair Market Value, as of the

             expiration of any tender or exchange offer (other than

             consideration payable in respect of any odd-lot tender offer) of

             consideration payable in respect of any tender or exchange offer by

             the Corporation or any of the Corporation's Subsidiaries for all or

             any portion of shares of Common Stock concluded during such

             quarterly fiscal period, exceed the product of $0 multiplied by the

             number of shares of Common Stock

 

 

                                       23

<PAGE>

 

 

              outstanding on the record date for such distribution, then, and in

              each such case, the Conversion Rate shall be adjusted so that the

              same shall equal the Conversion Rate determined by multiplying the

              Conversion Rate in effect immediately prior to the close of

              business on the record date fixed for the determination of holders

              of Common Stock entitled to receive such distribution by a

              fraction of which (A) the numerator shall be the Market Price per

              share of the Common Stock on the earlier of such record date or

              the Trading Day immediately preceding the ex-dividend date for

              such dividend or distribution and (B) the denominator shall be (1)

              the Market Price per share of Common Stock on the earlier of such

              record date or the Trading Day immediately preceding the

              ex-dividend date for such dividend or distribution plus (2) $0

              less (3) an amount equal to the quotient of (x) the combined

              amount distributed or payable in the transactions described in

              clauses (a), (b) and (c) above during such quarterly fiscal period

              and (y) the number of shares of Common Stock outstanding on such

              record date, such adjustment to become effective immediately after

              the record date for the determination of shareholders entitled to

              receive such distribution.

 

       (v)    With respect to Section 7(f)(iii) hereof, in the event that the

              Corporation makes any distribution to all holders of Common Stock

              consisting of Equity Interests in a Subsidiary or other business

              unit of the Corporation, the Conversion Rate shall be adjusted so

              that the same shall equal the Conversion Rate determined by

              multiplying the Conversion Rate in effect immediately prior to the

              close of business on the record date fixed for the determination

              of holders of Common Stock entitled to receive such distribution

              by a fraction of which (i) the numerator shall be (x) the Spin-off

              Market Price per share of the Common Stock on such record date

              plus (y) the Spin-off Market Price per Equity Interest of the

              Subsidiary or other business unit of the Corporation on such

              record date and (ii) the denominator shall be the Spin-off Market

              Price per share of the Common Stock on such record date, such

              adjustment to become effective 10 Trading Days after the effective

              date of such distribution of Equity Interests in a Subsidiary or

              other business unit of the Corporation.

 

       (vi)   Upon conversion of the 4.50% Convertible Preferred Stock, the

              Holders shall receive, in addition to the Common Stock issuable

              upon such conversion, the rights issued under any future

              shareholder rights plan the Corporation implements

              (notwithstanding the occurrence of an event causing such rights to

              separate from the Common Stock at or prior to the time of

              conversion) unless, prior to conversion, the rights have expired,

              terminated or been redeemed or exchanged in accordance with such

              rights plan. If, and only if, the Holders of 4.50% Convertible

              Preferred Stock receive rights under such shareholder rights plans

              as described in the preceding sentence upon conversion of their

              4.50% Convertible Preferred Stock, then no other adjustment

              pursuant to this Section 7(f) shall be made in connection with

              such shareholder rights plans.

 

       (vii)  For purposes of this Section 7(f), the number of shares of Common

              Stock at any time outstanding shall not include shares held in the

              treasury of the Corporation but shall include shares issuable in

              respect of scrip certificates issued in lieu of fractions of

              shares of Common Stock. The Corporation shall not pay any dividend

              or make any distribution on shares of Common Stock held in the

              treasury of the Corporation.

 

       (viii) Notwithstanding the foregoing, in no event shall the Conversion

              Rate exceed the maximum conversion rate specified under this

              Section 7(f)(viii) (the "Maximum Conversion Rate") as a result of

              an adjustment pursuant to Section 7(f)(iii) or Section 7(f)(iv)

              hereof. The Maximum Conversion Rate shall initially be 6.5703 and

              shall be

 

 

                                       24

<PAGE>

 

 

               appropriately adjusted from time to time for any stock dividends

               on or subdivisions or combinations of the Common Stock. The

               Maximum Conversion Rate shall not apply to any adjustments made

               pursuant to any of the events in Section 7(f)(i) or Section

               7(f)(ii) hereof.

 

         (g) Calculation Methodology. No adjustment in the Conversion Price need

be made unless the adjustment would require an increase or decrease of at least

1% in the Conversion Price then in effect, provided that any adjustment that

would otherwise be required to be made shall be carried forward and taken into

account in any subsequent adjustment. Except as stated in this Section 7, the

Conversion Rate will not be adjusted for the issuance of Common Stock or any

securities convertible into or exchangeable for Common Stock or carrying the

right to purchase any of the foregoing. Any adjustments that are made shall be

carried forward and taken into account in any subsequent adjustment. All

calculations under Section 4 and Section 7(f) hereof and this Section 7(g) shall

be made to the nearest cent or to the nearest 1/10,000th of a share, as the case

may be.

 

         (h)   When No Adjustment Required.  No adjustment to the Conversion

               Rate need be made:

 

         (i)   upon the issuance of any shares of Common Stock pursuant to any

               present or future plan providing for the reinvestment of

               dividends or interest payable on securities of the Corporation

               and the investment of additional optional amounts in shares of

               Common Stock under any plan;

 

         (ii)  upon the issuance of any shares of Common Stock or options or

               rights to purchase those shares pursuant to any present or future

               employee, director or consultant benefit plan or program of or

               assumed by the Corporation or any of its Subsidiaries;

 

         (iii) upon the issuance of any shares of Common Stock pursuant to any

               option, warrant, right, or exercisable, exchangeable or

               convertible security not described in clause (ii) above and

               outstanding as of the date of this Certificate of Designation;

 

         (iv)  for a change in the par value or no par value of the Common

               Stock;

 

         (v)   for accumulated and unpaid dividends (including Additional

               Dividends, if any); or

 

         (vi)  if Holders are to participate in a merger or consolidation on a

               basis and with notice that the Board of Directors determines to

               be fair and appropriate in light of the basis and notice on which

               holders of Common Stock participate in the transaction; provided

               that the basis on which the Holders are to participate in the

               transaction shall not be deemed to be fair if it would require

               the conversion of securities at any time prior to the expiration

               of the conversion period specified for such securities.

 

         To the extent the 4.50% Convertible Preferred Stock becomes convertible

into cash, assets or property (other than capital stock of the Corporation or

securities to which Section 7(l) hereof applies), no adjustment shall be made

thereafter as to the cash, assets or property. Interest shall not accumulate on

such cash.

 

         (i) Notice of Adjustment. Whenever the Conversion Rate is adjusted, the

Corporation shall promptly mail to Holders a notice of the adjustment. The

Corporation shall file with the Conversion Agent such notice. The certificate

shall, absent manifest error, be conclusive evidence that the adjustment is

correct. No Conversion Agent shall be under any duty or responsibility with

respect to any such certificate except to exhibit the same to any Holder

desiring inspection thereof.

 

 

 

 

                                       25

<PAGE>

 

         (j) Voluntary Increase. The Corporation may make such increases in the

Conversion Rate, in addition to those required by Section 7(f) hereof, as the

Board of Directors considers to be advisable to avoid or diminish any income tax

to holders of Common Stock or rights to purchase Common Stock resulting from any

dividend or distribution of stock (or rights to acquire stock) or from any event

treated as such for income tax purposes. To the extent permitted by applicable

law, the Corporation may from time to time increase the Conversion Rate by any

amount, temporarily or otherwise, for any period of at least 20 days if 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 Conversion

Rate is so increased, the Corporation shall mail to Holders and file with the

Conversion Agent a notice of such increase. The Conversion Agent shall not be

under any duty or responsibility with respect to any such notice except to

exhibit the same to any holder desiring inspection thereof. The Corporation

shall mail the notice at least 15 days before the date the increased Conversion

Rate takes effect. The notice shall state the increased Conversion Rate and the

period it shall be in effect.

 

         (k)   Notice to Holders Prior to Certain Actions.  In case:

 

         (i)   the Corporation shall declare a dividend (or any other

               distribution) on its Common Stock that would require an

               adjustment in the Conversion Rate pursuant to Section 7(f)

               hereof;

 

         (ii)  the Corporation shall authorize the granting to all or

               substantially all the holders of its Common Stock of rights or

               warrants to subscribe for or purchase any share of any class or

               any other rights or warrants;

 

         (iii) of any reclassification or reorganization of the Common Stock of

               the Corporation (other than a subdivision or combination of its

               outstanding Common Stock, or a change in par value, or from par

               value to no par value, or from no par value to par value), or of

               any consolidation or merger to which the Corporation is a party

               and for which approval of any shareholders of the Corporation is

               required, or of the sale or transfer of all or substantially all

               of the assets of the Corporation; or

 

         (iv)  of the voluntary or involuntary dissolution, liquidation or

               winding-up of the Corporation,

 

               the Corporation shall cause to be filed with the Conversion Agent

               and to be mailed to each Holder at its address appearing on the

               Security Register, as promptly as possible but in any event at

               least 15 days prior to the applicable date hereinafter specified,

               a notice stating (x) the date on which a record is to be taken

               for the purpose of such dividend, distribution or rights or

               warrants, or, if a record is not to be taken, the date as of

               which the holders of Common Stock of record to be entitled to

               such dividend, distribution, or rights or warrants are to be

               determined or (y) the date on which such reclassification,

               reorganization, consolidation, merger, sale, transfer,

               dissolution, liquidation or winding-up is expected to become

               effective or occur, and the date as of which it is expected that

               holders of Common Stock of record shall be entitled to exchange

               their Common Stock for securities or other property deliverable

               upon such reclassification, reorganization, consolidation,

               merger, sale, transfer, dissolution, liquidation or winding-up.

               Failure to give such notice, or any defect therein, shall not

               affect the legality or validity of such dividend, distribution,

               reclassification, reorganization, consolidation, merger, sale,

               transfer, dissolution, liquidation or winding-up.

 

 

 

 

                                       26

<PAGE>

 

 

         (l) Effect of Reclassification, Consolidation, Merger, Binding Share

Exchange or Sale. If any of the following events occur, namely: (i) any

reclassification or change of outstanding shares of Common Stock (other than a

change in par value, or from par value to no par value, or from no par value to

par value, or as a result of a subdivision or combination); (ii) any

consolidation, merger, combination or binding share exchange of the Corporation

with another Person as a result of which holders of Common Stock shall be

entitled to receive stock, securities or other property or assets (including

cash) with respect to or in exchange for such Common Stock; or (iii) any sale or

conveyance of the properties and assets of the Corporation as, or substantially

as, an entirety to any other Person as a result of which holders of Common Stock

shall be entitled to receive stock, securities or other property or assets

(including cash) with respect to or in exchange for such Common Stock, then the

Corporation or the successor or purchasing Person, as the case may be, shall

cause an amendment to this Certificate of Designation to be executed and filed

in accordance with Michigan law, providing that each share of 4.50% Convertible

Preferred Stock shall be convertible into the kind and amount of shares of stock

and other securities or property or assets (including cash) receivable upon such

reclassification, change, consolidation, merger, combination, binding share

exchange, sale or conveyance by a holder of a number of shares of Common Stock

issuable upon conversion of such 4.50% Convertible Preferred Stock immediately

prior to such reclassification, change, consolidation, merger, combination,

binding share exchange, sale or conveyance. Such amended Certificate of

Designation shall provide for adjustments which shall be as nearly equivalent as

may be practicable to the adjustments provided for in this Section 7(l).

 

         The Corporation shall cause notice of the execution of such amended

Certificate of Designation to be mailed to each Holder, at its address appearing

on the Security Register, within 20 days after filing thereof. Failure to

deliver such notice shall not affect the legality or validity of such

supplemental indenture.

 

         The above provisions of this Section 7(l) shall similarly apply to

successive reclassifications, changes, consolidations, mergers, combinations,

binding share exchanges, sales and conveyances.

 

         If this Section 7(l) applies to any event or occurrence, Section 7(f)

hereof shall not apply.

 

         (m) Responsibility of Conversion Agent. The Conversion Agent shall not

at any time be under any duty or responsibility to any Holder to either

calculate the Conversion Rate or determine whether any facts exist which may

require any adjustment of the Conversion Rate, or with respect to the nature or

extent or calculation of any such adjustment when made, or with respect to the

method employed, or herein or in any amended Certificate of Designation provided

to be employed, in making the same and shall be protected in relying upon an

Officers' Certificate with respect to the same. The Conversion Agent shall not

be accountable with respect to the validity or value (or the kind or amount) of

any shares of Common Stock, or of any securities or property, which may at any

time be issued or delivered upon the conversion of any 4.50% Convertible

Preferred Stock and the Conversion Agent makes no representations with respect

thereto. The Conversion Agent shall not be responsible for any failure of the

Corporation to issue, transfer or deliver any shares of Common Stock or stock

certificates or other securities or property or cash upon the surrender of any

4.50% Convertible Preferred Stock for the purpose of conversion or to comply

with any of the duties, responsibilities or covenants of the Corporation

contained in this Section 7(m). Without limiting the generality of the

foregoing, the Conversion Agent shall not be under any responsibility to

determine the correctness of any provisions contained in any amended Certificate

of Designation entered into pursuant to this Section 7 relating either to the

kind or amount of shares of stock or securities or property (including cash)

receivable by Holders upon the conversion of their 4.50% Convertible Preferred

Stock after any event referred to in this Section 7 or to any adjustment to be

made with respect thereto, but may accept as conclusive evidence of the

correctness of any such

 

 

                                       27

<PAGE>

 

 

provisions, and shall be protected in relying upon, the Officers' Certificate

(which the Corporation shall be obligated to file with the Conversion Agent

prior to the execution of any such amended Certificate of Designation) with

respect thereto.

 

         (n) Simultaneous Adjustments. In the event that Section 7(f) hereof

requires adjustments to the Conversion Rate under more than one of Section

7(f)(i), Section 7(f)(ii), Section 7(f)(iii) or Section 7(f)(iv) hereof, and the

Dividend Record Dates for the distributions giving rise to such adjustments

shall occur on the same date, then such adjustments shall be made by applying,

first, the provisions of Section 7(f)(iii) hereof, second, the provisions of

Section 7(f)(i) hereof and third, the provisions of Section 7(f)(ii) hereof;

provided, however, that nothing in this Section 7(n) shall be done to evade the

principle set forth in Section 7(f)(viii) hereof that the Maximum Conversion

Rate shall not apply to any adjustments made with respect to any of the events

in Section 7(f)(i) or Section 7(f)(ii) hereof.

 

         (o) Successive Adjustments. After an adjustment to the Conversion Rate

under Section 7(f) hereof, any subsequent event requiring an adjustment under

Section 7(f) shall cause an adjustment to the Conversion Rate as so adjusted.

 

         (p) General Considerations. Whenever successive adjustments to the

Conversion Rate are called for pursuant to this Section 7, such adjustments

shall be made to the Market Price as may be necessary or appropriate to

effectuate the intent of this Section 7 and to avoid unjust or inequitable

results as determined in good faith by the Board of Directors.

 

         (q)  Corporation Determination Final.  Any determination which the

Board of Directors must make pursuant to this Section 7 shall be conclusive and

binding on the Holders.

 

 

 

         8.   Mandatory Conversion.

 

         (a) At any time on or after December 5, 2008, the Corporation shall

have the right, at its option, to cause the 4.50% Convertible Preferred Stock,

in whole but not in part, to be automatically converted into that number of

whole shares of Common Stock for each share of 4.50% Convertible Preferred Stock

equal to the quotient of (i) the Liquidation Preference divided by (ii) the

Conversion Price then in effect, with any resulting fractional shares of Common

Stock to be settled in accordance with Section 7(c). The Corporation may

exercise its right to cause a mandatory conversion pursuant to this Section 8(a)

only if the Last Reported Sale Price of the Common Stock equals or exceeds 130%

of the Conversion Price then in effect for at least 20 Trading Days in any

consecutive 30-day trading period on the NYSE (or such other national securities

exchange or automated quotation system on which the Common Stock is then listed

or authorized for quotation), including the last Trading Day of such 30-day

period, ending on the Trading Day prior to the Corporation's issuance of a press

release announcing the mandatory conversion as described in Section 8(b).

 

 

         (b) To exercise the mandatory conversion right described in Section

8(a) , the Corporation must issue a press release for publication on the Dow

Jones News Service prior to the opening of business on the first trading day

following any date on which the conditions described in Section 8(a) are met,

announcing such a mandatory conversion. The Corporation shall also give notice

by mail or by publication (with subsequent prompt notice by mail) to the holders

of 4.50% Convertible Preferred Stock (not more than four Business Days after the

date of the press release) of the mandatory conversion announcing the

Corporation's intention to convert the 4.50% Convertible Preferred Stock. The

conversion date will be a date selected by the Corporation (the "Mandatory

Conversion Date") and will be no more than five days after the date on which the

Corporation issues

 

 

                                       28

<PAGE>

 

the press release described in this Section 8(b).

 

         (c) In addition to any information required by applicable law or

regulation, the press release and notice of a mandatory conversion described in

Section 8(b) shall state, as appropriate: (i) the Mandatory Conversion Date;

(ii) the number of shares of Common Stock to be issued upon conversion of each

share of 4.50% Convertible Preferred Stock; (iii) the number of shares of 4.50%

Convertible Preferred Stock to be converted; and (iv) that dividends on the

4.50% Convertible Preferred Stock to be converted will cease to accumulate on

the Mandatory Conversion Date.

 

         (d) On and after the Mandatory Conversion Date, dividends will cease to

accumulate on the 4.50% Convertible Preferred Stock called for a mandatory

conversion pursuant to Section 8(a) and all rights of holders of such 4.50%

Convertible Preferred Stock will terminate except for the right to receive the

whole shares of Common Stock issuable upon conversion thereof and cash, in lieu

of any fractional shares of Common Stock in accordance with Section 7(c). The

dividend payment with respect to the 4.50% Convertible Preferred Stock called

for a mandatory conversion pursuant to Section 8(a) on a date during the period

between the close of business on any Dividend Record Date to the close of

business on the corresponding Dividend Payment Date will be payable on such

Dividend Payment Date to the record holder of such share on such Dividend Record

Date if such share has been converted after such Dividend Record Date and prior

to such Dividend Payment Date. Except as provided in the immediately preceding

sentence with respect to a mandatory conversion pursuant to Section 8(a), no

payment or adjustment will be made upon conversion of 4.50% Convertible

Preferred Stock for Accumulated Dividends or for dividends with respect to the

Common Stock issued upon such conversion.

 

         (e) The Corporation may not authorize, issue a press release or give

notice of any mandatory conversion pursuant to Section 8(a) unless, prior to

giving the mandatory conversion notice, all Accumulated Dividends on the 4.50%

Convertible Preferred Stock for periods ended prior to the date of such

mandatory conversion notice shall have been paid in cash.

 

         (f) In addition to the mandatory conversion right described in Section

8(a), if there are less than 250,000 shares of 4.50% Convertible Preferred Stock

outstanding, the Corporation shall have the right, at any time on or after

December 5, 2008, at its option, to cause the 4.50% Convertible Preferred Stock

to be automatically converted into that number of whole shares of Common Stock

equal to the quotient of (i) the Liquidation Preference divided by (ii) the

lesser of (A) the Conversion Price then in effect and (B) the Market Value for

the period ending on the second Trading Day immediately prior to the Mandatory

Conversion Date, with any resulting fractional shares of Common Stock to be

settled in cash in accordance with Section 7(c). The provisions of clauses (b),

(c), (d) and (e) of this Section 8 shall apply to any mandatory conversion

pursuant to this clause (f); provided, that (i) the Mandatory Conversion Date

described in Section 8(b) shall not be less than 15 days nor more than 30 days

after the date on which the Corporation issues a press release pursuant to

Section 8(b) announcing such mandatory conversion and (ii) the press release and

notice of mandatory conversion described in Section 8(c) will not state the

number of shares of Common Stock to be issued upon conversion of each share of

4.50% Convertible Preferred Stock.

 

         9.   Consolidation, Merger and Sale of Assets.

 

         (a) The Corporation, without the consent of the Holders of any of the

outstanding 4.50% Convertible Preferred Stock, may consolidate with or merge

into any other Person or convey, transfer or lease all or substantially all its

assets to any Person or may permit any Person to consolidate with or merge into,

or transfer or lease all or substantially all its properties to, the

Corporation; provided,

 

 

                                       29

<PAGE>

 

however, that: (a) the successor, transferee or lessee is organized under the

laws of the United States or any political subdivision thereof; (b) the shares

of 4.50% Convertible Preferred Stock will become shares of such successor,

transferee or lessee, having in respect of such successor, transferee or lessee

the same powers, designations, preferences and relative, participating, optional

or other rights on which, and the qualification, limitations or restrictions

thereon, the 4.50% Convertible Preferred Stock had immediately prior to such

transaction; and (c) the Corporation delivers to the Transfer Agent an Officers'

Certificate and an Opinion of Counsel stating that such transaction complies

with this Certificate of Designation (including without limitation the

requirements of Section 7(l).

 

         (b) Upon any consolidation by the Corporation with, or merger by the

Corporation into, any other Person or any conveyance, transfer or lease of all

or substantially all the assets of the Corporation as described in Section 9(a),

the successor resulting from such consolidation or into which the Corporation is

merged or the transferee or lessee to which such conveyance, transfer or lease

is made will succeed to, and be substituted for, and may exercise every right

and power of, the Corporation under the shares of 4.50% Convertible Preferred

Stock, and, thereafter, except in the case of a lease, the predecessor (if still

in existence) will be released from its obligations and covenants with respect

to the 4.50% Convertible Preferred Stock.

 

         10.   SEC Reports.

 

         Whether or not the Corporation is required to file reports with the

Commission, if any shares of 4.50% Convertible Preferred Stock are outstanding,

the Corporation shall file with the Commission all such reports and other

information as it would be required to file with the Commission by Section 13(a)

or 15(d) under the Exchange Act. The Corporation shall supply each holder of

4.50% Convertible Preferred Stock, upon request, without cost to such holder,

copies of such reports or other information.

 

         11.   Certificates.

 

         (a) Form and Dating. The 4.50% Convertible Preferred Stock and the

Transfer Agent's certificate of authentication shall be substantially in the

form of Exhibit C, which is hereby incorporated in and expressly made a part of

this Certificate of Designation. The 4.50% Convertible Preferred Stock

certificate may have notations, legends or endorsements required by law, stock

exchange rule, agreements to which the Corporation is subject, if any, or usage

(provided that any such notation, legend or endorsement is in a form acceptable

to the Corporation). Each 4.50% Convertible Preferred Stock certificate shall be

dated the date of its authentication. The terms of the

 

 

 

                                       30

<PAGE>

 

 

4.50% Convertible Preferred Stock certificate set forth in Exhibit C are part of

the terms of this Certificate of Designation.

 

       (i)     Global 4.50% Convertible Preferred Stock. The 4.50% Convertible

               Preferred Stock shall be issued initially in the form of one or

               more fully registered global certificates with the global

               securities legend and restricted securities legend set forth in

               Exhibit C hereto (the "Global 4.50% Convertible Preferred

               Stock"), which shall be deposited on behalf of the purchasers

               represented thereby with DTC (or with such custodian as DTC may

               direct), and registered in the name of DTC or a nominee of DTC,

               duly executed by the Corporation and authenticated by the

               Transfer Agent as hereinafter provided. The number of shares of

               4.50% Convertible Preferred Stock represented by Global 4.50%

               Convertible Preferred Stock may from time to time be increased or

               decreased by adjustments made on the records of the Transfer

               Agent and DTC or its nominee as hereinafter provided. With

               respect to shares of 4.50% Convertible Preferred Stock that are

               not "restricted securities" as defined in Rule 144 under the

               Securities Act on a Conversion Date, all shares of Common Stock

               distributed on such Conversion Date will be freely transferable

               without restriction under the Securities Act (other than by

               affiliates), and such shares will be eligible for receipt in

               global form through the facilities of DTC.

 

 

       (ii)    Book-Entry Provisions. In the event Global 4.50% Convertible

               Preferred Stock is deposited with or on behalf of DTC, the

               Corporation shall execute and the Transfer Agent shall

               authenticate and deliver initially one or more Global 4.50%

               Convertible Preferred Stock certificates that (a) shall be

               registered in the name of DTC as depository for such Global 4.50%

               Convertible Preferred Stock or the nominee of DTC and (b) shall

               be delivered by the Transfer Agent to DTC or pursuant to DTC's

               instructions or held by the Transfer Agent as custodian for DTC.

 

               Members of, or participants in, DTC ("Agent Members") shall have

               no rights under this Certificate of Designation with respect to

               any Global 4.50% Convertible Preferred Stock held on their behalf

               by DTC or by the Transfer Agent as the custodian of DTC or under

               such Global 4.50% Convertible Preferred Stock, and DTC may be

               treated by the Corporation, the Transfer Agent and any agent of

               the Corporation or the Transfer Agent as the absolute owner of

               such Global 4.50% Convertible Preferred Stock for all purposes

               whatsoever. Notwithstanding the foregoing, nothing herein shall

               prevent the Corporation, the Transfer Agent or any agent of the

               Corporation or the Transfer Agent from giving effect to any

               written certification, proxy or other authorization furnished by

               DTC or impair, as between DTC and its Agent Members, the

               operation of customary practices of DTC governing the exercise of

               the rights of a holder of a beneficial interest in any Global

               4.50% Convertible Preferred Stock.

 

         (iii) Certificated 4.50% Convertible Preferred Stock. Except as

               provided in Section 11(c), owners of beneficial interests in

               Global 4.50% Convertible Preferred Stock will not be entitled to

               receive Certificated 4.50% Convertible Preferred Stock.

 

         (b) Execution and Authentication. Two Officers shall sign the 4.50%

Convertible Preferred Stock certificate for the Corporation by manual or

facsimile signature.

 

 

 

 

                                       31

<PAGE>

 

 

         If an Officer whose signature is on a 4.50% Convertible Preferred Stock

certificate no longer holds that office at the time the Transfer Agent

authenticates the 4.50% Convertible Preferred Stock certificate, the 4.50%

Convertible Preferred Stock certificate shall be valid nevertheless.

 

         A 4.50% Convertible Preferred Stock certificate shall not be valid

until an authorized signatory of the Transfer Agent and the Security Registrar

manually signs the certificate of authentication on the 4.50% Convertible

Preferred Stock certificate. The signature shall be conclusive evidence that the

4.50% Convertible Preferred Stock certificate has been authenticated under this

Certificate of Designation.

 

         The Transfer Agent shall authenticate and deliver certificates for up

to 5,000,000 shares of 4.50% Convertible Preferred Stock for original issue upon

a written order of the Corporation signed by two Officers or by an Officer and

an Assistant Treasurer of the Corporation. Such order shall specify the number

of shares of 4.50% Convertible Preferred Stock to be authenticated and the date

on which the original issue of 4.50% Convertible Preferred Stock is to be

authenticated.

 

         The Transfer Agent may appoint an authenticating agent reasonably

acceptable to the Corporation to authenticate the certificates for 4.50%

Convertible Preferred Stock. Unless limited by the terms of such appointment, an

authenticating agent may authenticate certificates for 4.50% Convertible

Preferred Stock whenever the Transfer Agent may do so. Each reference in this

Certificate of Designation to authentication by the Transfer Agent includes

authentication by such agent. An authenticating agent has the same rights as the

Transfer Agent or agent for service of notices and demands.

 

         (c) Transfer and Exchange of Global 4.50% Convertible Preferred Stock.

The transfer and exchange of Global 4.50% Convertible Preferred Stock or

beneficial interests therein shall be effected through DTC, in accordance with

this Certificate of Designation (including applicable restrictions on transfer

set forth herein, if any) and the procedures of DTC therefor.

 

         (i) Restrictions on Transfer and Exchange of Global 4.50%

             Convertible Preferred Stock.

 

               (1)  Notwithstanding any other provisions of this Certificate of

                    Designation (other than the provisions set forth in Section

                    11(c)(ii)), Global 4.50% Convertible Preferred Stock may not

                    be transferred as a whole except by DTC to a nominee of DTC

                    or by a nominee of DTC to DTC or another nominee of DTC or

                    by DTC or any such nominee to a successor depository or a

                    nominee of such successor depository.

 

               (2)  In the event that the Global 4.50% Convertible Preferred

                    Stock is exchanged for 4.50% Convertible Preferred Stock in

                    definitive registered form pursuant to Section 11(c)(ii)

                    prior to the effectiveness of a Shelf Registration Statement

                    with respect to such securities, such 4.50% Convertible

                    Preferred Stock may be exchanged only in accordance with

                    such procedures as are substantially consistent with the

                    provisions of this Section 11(c) (including the

                    certification requirements set forth in the Exhibits to this

                    Certificate of Designation intended to ensure that such

                    transfers comply with Rule 144A or such other applicable

                    exemption from registration under the Securities Act, as the

                    case may be) and such other procedures as may from time to

                    time be adopted by the Corporation.

 

                    (3) The 4.50% Convertible Preferred Stock, and any shares of

                    Common Stock distributed pursuant to the conversion of the

                    4.50% Convertible Preferred Stock,

 

 

                                       32

<PAGE>

 

                    may not be sold or otherwise transferred until the

                    expiration of two years following the date of payment for

                    and delivery of the 4.50% Convertible Preferred Stock,

                    except (a) pursuant to registration under the Securities

                    Act, (b) in accordance with Rule 144 (if available) or Rule

                    144A under the Securities Act (if available) or (c) in

                    offshore transactions in reliance on Regulation S, and will

                    bear a legend to this effect.

 

         (ii)  Authentication of Certificated 4.50% Convertible Preferred

               Stock. If at any time:

 

               (1)  DTC notifies the Corporation that DTC is unwilling or unable

                    to continue as depository for the Global 4.50% Convertible

                    Preferred Stock and a successor depository for the Global

                    4.50% Convertible Preferred Stock is not appointed by the

                    Corporation within 90 days after delivery of such notice;

 

               (2)  DTC ceases to be a clearing agency registered under the

                    Exchange Act and a successor depository for the Global 4.50%

                    Convertible Preferred Stock is not appointed by the

                    Corporation within 90 days; or

 

               (3)  the Corporation, in its sole discretion, notifies the

                    Transfer Agent in writing that it elects to cause the

                    issuance of Certificated 4.50% Convertible Preferred Stock

                    under this Certificate of Designation,

 

                    then the Corporation will execute, and the Transfer Agent,

                    upon receipt of a written order of the Corporation signed by

                    two Officers or by an Officer and an Assistant Treasurer of

                    the Corporation requesting the authentication and delivery

                    of Certificated 4.50% Convertible Preferred Stock to the

                    Persons designated by the Corporation, will authenticate and

                    deliver Certificated 4.50% Convertible Preferred Stock equal

                    to the number of shares of 4.50% Convertible Preferred Stock

                    represented by the Global 4.50% Convertible Preferred Stock,

                    in exchange for such Global 4.50% Convertible Preferred

                    Stock.

 

         (iii) Cancellation or Adjustment of Global 4.50% Convertible Preferred

               Stock. At such time as all beneficial interests in Global 4.50%

               Convertible Preferred Stock have either been exchanged for

               Certificated 4.50% Convertible Preferred Stock, converted or

               canceled, such Global 4.50% Convertible Preferred Stock shall be

               returned to DTC for cancellation or retained and canceled by the

               Transfer Agent. At any time prior to such cancellation, if any

               beneficial interest in Global 4.50% Convertible Preferred Stock

               is exchanged for Certificated 4.50% Convertible Preferred Stock,

               converted or canceled, the number of shares of 4.50% Convertible

               Preferred Stock represented by such Global 4.50% Convertible

               Preferred Stock shall be reduced and an adjustment shall be made

               on the books and records of the Transfer Agent with respect to

               such Global 4.50% Convertible Preferred Stock, by the Transfer

               Agent or DTC, to reflect such reduction.

 

         (iv)  Obligations with Respect to Transfers and Exchanges of 4.50%

               Convertible Preferred Stock.

 

 

 

 

 

                                       33

<PAGE>

 

 

                      (1) To permit registrations of transfers and exchanges,

               the Corporation shall execute and the Transfer Agent shall

               authenticate Certificated 4.50% Convertible Preferred Stock and

               Global 4.50% Convertible Preferred Stock as required pursuant to

               the provisions of this Section 11(c).

 

                      (2) All Certificated 4.50% Convertible Preferred Stock and

               Global 4.50% Convertible Preferred Stock issued upon any

               registration of transfer or exchange of Certificated 4.50%

               Convertible Preferred Stock or Global 4.50% Convertible Preferred

               Stock shall be the valid obligations of the Corporation, entitled

               to the same benefits under this Certificate of Designation as the

               Certificated 4.50% Convertible Preferred Stock or Global 4.50%

               Convertible Preferred Stock surrendered upon such registration of

               transfer or exchange.

 

                      (3) Prior to due presentment for registration of transfer

               of any shares of 4.50% Convertible Preferred Stock, the Transfer

               Agent and the Corporation may deem and treat the Person in whose

               name such shares of 4.50% Convertible Preferred Stock are

               registered as the absolute owner of such 4.50% Convertible

               Preferred Stock and neither the Transfer Agent nor the

               Corporation shall be affected by notice to the contrary.

 

                      (4) No service charge shall be made to a Holder for any

               registration of transfer or exchange upon surrender of any 4.50%

               Convertible Preferred Stock certificate or Common Stock

               certificate at the office of the Transfer Agent maintained for

               that purpose. However, the Corporation may require payment of a

               sum sufficient to cover any tax or other governmental charge that

               may be imposed in connection with any registration of transfer or

               exchange of 4.50% Convertible Preferred Stock certificates or

               Common Stock certificates.

 

                      (5) Upon any sale or transfer of shares of 4.50%

               Convertible Preferred Stock (including any 4.50% Convertible