RESTATED CERTIFICATE OF INCORPORATION

 

                                       OF

 

                         UNITED STATES STEEL CORPORATION

 

                            ________________________

 

Originally formed as a Delaware limited liability company under the name "United

   States Steel LLC" on May 25, 2001 and converted to a Delaware corporation,

 pursuant to Section 265 of the Delaware General Corporation Law and Section 18-

  216 of the Delaware Limited Liability Company Act, on December 31, 2001 under

                         the name first set forth below

 

                            ________________________

 

 

     FIRST:  The name of the Corporation (which is hereinafter referred to as

the "Corporation") is

 

                         UNITED STATES STEEL CORPORATION

 

     SECOND:  Its registered office and place of business in the State of

Delaware is located at 9 East Loockerman Street, Suite 1B, City of Dover, County

of Kent. The registered agent in charge thereof upon whom process against the

Corporation may be served is National Registered Agents, Inc.

 

     THIRD:  The purposes of the Corporation are to engage in any lawful act or

activity for which corporations may be organized under the General Corporation

Law of Delaware, and without limiting the foregoing to engage in integrated

steel operations and to develop, mine, produce, manufacture, construct,

transport, buy, hold, sell and generally deal in products, materials, property,

both tangible and intangible, and services of all kinds.

 

     FOURTH:  The total number of shares of capital stock which the Corporation

shall have authority to issue is Four Hundred Forty Million (440,000,000), of

which Four Hundred Million (400,000,000) shares shall be Common Stock having a

par value of one dollar ($1.00) per share and Forty Million (40,000,000) shares

shall be shares of Preferred Stock, without par value (hereinafter called

"Preferred Stock").

 

     A statement of the designations of the Preferred Stock or of any series

thereof, and the powers, preferences and relative, participating, optional or

other special rights, and qualifications, limitations or restrictions thereof,

or of the authority of the Board of Directors to fix by resolution or

resolutions such designations and other terms not fixed by the Certificate of

Incorporation, is as follows:

 

      1.  The Preferred Stock may be issued in one or more series, from time to

time, with each such series to have such designation, powers, preferences and

relative, participating, optional or other special rights, and qualifications,

limitations or restrictions thereof, as shall be stated and expressed in the

resolution or resolutions providing for the issue of such series adopted by the

Board of Directors of the Corporation, subject to the limitations prescribed by

law and in accordance with the provisions hereof, the Board of Directors being

hereby expressly vested with authority to adopt any such resolution

or resolutions. The authority of the Board of Directors with respect to each

such series shall include, but not be limited to, the determination or fixing

of the following:

 

 

     i.   The distinctive designation and number of shares comprising such

series, which number may (except where otherwise provided by the Board of

Directors in creating such series) be increased or decreased (but not below the

number of shares then outstanding) from time to time by like action of the Board

of Directors;

 

     ii.  The dividend rate of such series, the conditions and times upon which

such dividends shall be payable, the relation which such dividends shall bear to

the dividends payable on any other class or classes of stock or series thereof,

or any other series of the same class, and whether dividends shall be cumulative

or non-cumulative;

 

     iii. The conditions upon which the shares of such series shall be subject

to redemption by the Corporation and the times, prices and other terms and

provisions upon which the shares of the series may be redeemed;

 

     iv.  Whether or not the shares of the series shall be subject to the

operation of a retirement or sinking fund to be applied to the purchase or

redemption of such shares and, if such retirement or sinking fund be

established, the annual amount thereof and the terms and provisions relative to

the operation thereof;

 

     v.   Whether or not the shares of the series shall be convertible into or

exchangeable for shares of any other class or classes, with or without par

value, or of any other series of the same class, and, if provision is made for

conversion or exchange, the times, prices, rates, adjustments, and other terms

and conditions of such conversion or exchange;

 

     vi.  Whether or not the shares of the series shall have voting rights, in

addition to the voting rights provided by law, and, if so, subject to the

limitation hereinafter set forth, the terms of such voting rights;

 

     vii. The rights of the shares of the series in the event of voluntary or

involuntary liquidation, dissolution, or upon the distribution of assets of the

Corporation;

 

     viii.     Any other powers, preferences and relative, participating,

optional or other special rights, and qualifications, limitations or

restrictions thereof, of the shares of such series, as the Board of Directors

may deem advisable and as shall not be inconsistent with the provisions of this

Certificate of Incorporation.

 

     2.  The holders of shares of the Preferred Stock of each series shall be

entitled to receive, when and as declared by the Board of Directors, out of

funds legally available for the payment of dividends, dividends at the rates

fixed by the Board of Directors for such series, and no more, before any

dividends, other than dividends payable in Common Stock, shall be declared and

paid, or set apart for payment, on the Common Stock with respect to the same

dividend period.

 

     3.  Whenever, at any time, dividends on the then outstanding Preferred

Stock as may be required with respect to any series outstanding shall have been

paid or declared and set apart for payment on the then outstanding Preferred

Stock, and after complying with respect to any retirement or sinking fund or

funds for any series of Preferred Stock, the Board of Directors may, subject to

the provisions of the resolution or resolutions creating any series of Preferred

Stock, declare and pay dividends on the Common Stock, and the holders of shares

of the Preferred Stock shall not be entitled to share therein.

 

     4. The holders of shares of the Preferred Stock of each series shall be

entitled upon liquidation or dissolution or upon the distribution of the assets

of the Corporation to such preferences as provided in the resolution or

resolutions creating such series of Preferred Stock, and no more, before any

distribution of the assets of the Corporation shall be made to the holders of

shares of the Common Stock.

 

     5.  Except as otherwise provided by a resolution or resolutions of the

Board of Directors creating any series of Preferred Stock or by the General

Corporation Law of Delaware, the holders of shares of the Common Stock issued

and outstanding shall have and possess the exclusive right to notice of

stockholders' meetings and the exclusive power to vote. The holders of shares of

the Preferred Stock issued and outstanding shall, in no event, be entitled to

more than one vote for each share of Preferred Stock held by them unless

otherwise required by law.

 

Pursuant to the authority conferred by this Article Fourth, the following series

of Preferred Stock have been designated, each such series consisting of such

number of shares, with such voting powers and with such designations,

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

qualifications, limitations or restrictions as are stated and expressed in

Exhibits A through B attached hereto and incorporated herein by reference:

 

          Exhibit A:     Series A Junior Preferred Stock

 

          Exhibit B:     7.00% Series B Mandatory Convertible Preferred Shares

 

     FIFTH:  The existence of the Corporation is to be perpetual.

 

     SIXTH:  The private property of the stockholders shall not be subject to

the payment of corporate debts to any extent whatever.

 

     SEVENTH:  The number of directors of the Corporation shall be fixed from

time to time by, or in the manner provided in, its by-laws and may be increased

or decreased as therein provided; but the number thereof shall not be less than

three.

 

     The directors of the Corporation shall be divided into three classes:

Class I, Class II and Class III.  Each class shall consist, as nearly as may be

possible, of one-third of the whole number of the Board of Directors.  Each of

the Class I directors shall hold office until the 2002 annual meeting of the

stockholders, each of the Class II directors shall hold office until the 2003

annual meeting of the stockholders, and each of the Class III directors shall

hold office until the 2004 annual meeting of the stockholders, and in the case

of each class, until their respective successors are duly elected and qualified.

At each annual election held from and after the 2002 annual meeting of the

stockholders, directors elected to succeed those whose terms expire shall be

identified as being of the same class as the directors they succeed and shall be

elected to hold office for a term to expire at the third annual meeting of the

stockholders after their election, and until their respective successors are

duly elected and qualified. If the number of directors is changed, any increase

or decrease in directors shall be apportioned among the classes so as to

maintain all classes as equal in number as possible, and any additional director

elected to any class shall hold office for a term which shall coincide with the

terms of the other directors in such class and until his successor is duly

elected and qualified.

 

     In the case of any increase in the number of directors of the Corporation,

the additional director or directors shall be elected by the Board of Directors.

 

     In the case of any vacancy in the Board of Directors from death,

resignation, disqualification or other cause, a successor to hold office for the

unexpired portion of the term of the director whose place shall be vacant, and

until the election of his successor, shall be elected by a majority of the Board

of Directors then in office, though less than a quorum.

 

     Directors of the Corporation may be removed only for cause.

 

     EIGHTH:  The Board of Directors shall have power to adopt, amend and repeal

the by-laws at any regular or special meeting of the Board of Directors,

provided that notice of intention to adopt, amend or repeal the by-laws in whole

or in part shall have been included in the notice of meeting; or, without any

such notice, by a vote of two-thirds of the directors then in office.

 

     Stockholders may adopt, amend and repeal the by-laws at any regular or

special meeting of the stockholders by an affirmative vote of two-thirds of the

shares outstanding and entitled to vote thereon, provided that notice of

intention to adopt, amend or repeal the by-laws in whole or in part shall have

been included in the notice of the meeting.

 

     Any action required to be taken at any annual or special meeting of the

stockholders of the Corporation, or any action which may be taken at any annual

or special meeting of the stockholders or otherwise, may not be taken without a

meeting, prior notice and a vote, and stockholders may not act by written

consent.

 

     NINTH:  The Board of Directors from time to time shall determine whether

and to what extent, and at what times and places, and under what conditions and

regulations, the accounts and books of the Corporation, or any of them, shall be

open to the inspection of the stockholders, and no stockholder shall have any

right to inspect any account or book or document of the Corporation, except as

conferred by law or authorized by the Board of Directors, or by the

stockholders.

 

     TENTH:  The directors may from time to time declare such dividends as they

shall deem advisable and proper, subject to the provisions of Article Fourth and

to such restrictions as may be imposed by law, and pay the same to the

stockholders at such times as they shall fix.

 

     The Board of Directors shall have power to issue bonds, debentures, or

other obligations, either non-convertible or convertible into the Corporation's

stock, subject to the provisions of Article Fourth and upon such terms, in such

manner and under such conditions in conformity with law, as may be fixed by the

Board of Directors prior to the issue of such bonds, debentures or other

obligations.

 

     ELEVENTH:  No director shall be personally liable to the Corporation or its

stockholders for monetary damages for any breach of fiduciary duty by such

director as a director, except (i) for breach of the director's duty of loyalty

to the Corporation or its stockholders, (ii) for acts or omissions not in good

faith or which involve intentional misconduct or a knowing violation of law,

(iii) pursuant to Section 174 of the Delaware General Corporation Law, or (iv)

for any transaction from which the director derived an improper personal

benefit. No amendment to or repeal of this Article Eleventh shall apply to or

have any effect on the liability or alleged liability of any director of the

Corporation for or with respect to any acts or omissions of such director

occurring prior to such amendment or repeal.

 

     TWELFTH:  The powers and authorities hereinbefore conferred upon the Board

of Directors are in furtherance and not in limitation of those conferred by the

laws of the State of Delaware.

 

     THIRTEENTH:  The Corporation reserves the right at any time and from time

to time to amend, alter, change or repeal any provision contained in this

Certificate of Incorporation in the manner now or hereafter prescribed by law,

and all rights, preferences and privileges of whatsoever nature conferred upon

stockholders, directors or any other persons whomsoever by and pursuant to this

Certificate of Incorporation in its present form or as hereafter amended are

granted subject to the rights reserved in this Article.

 

     IN WITNESS WHEREOF, this Restated Certificate of Incorporation, which only

restates and integrates and does not further amend the provisions of the

Certificate of Incorporation of this Corporation as heretofore amended or

supplemented, there being no discrepancies between those provisions and the

provisions of this Certificate of Incorporation, and it having been duly adopted

by the Corporation's Board of Directors in accordance with Section 245 of the

Delaware General Corporation Law, has been executed by its duly authorized

officer this 30th day of September, 2003.

 

                         UNITED STATES STEEL CORPORATION

 

 

 

                         BY:  /s/ T. J. Usher

                              -----------------------------------

                              T. J. Usher

                              Chairman of the Board of Directors and

                              Chief Executive Officer

 

 

 

                                    EXHIBIT A

 

                         SERIES A JUNIOR PREFERRED STOCK

 

 

     Section 1.  Designation and Amount.

 

     The shares of this series shall be designated as "Series A Junior Preferred

Stock" and the number of shares constituting such series shall be 2,000,000.

 

     Section 2.  Dividends and Distributions.

 

     (a)  Subject to the prior and superior rights of the holders of any shares

of any series of Preferred Stock ranking prior and superior to the shares of

Series A Junior Preferred Stock with respect to dividends, the holders of shares

of Series A Junior Preferred Stock shall be entitled to receive, when, as and if

declared by the Board of Directors out of funds legally available for the

purpose, quarterly dividends payable in cash on the first day of March, June,

September and December in each year (each such date being referred to herein as

a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend

Payment Date after the first issuance of a share or fraction of a share of

Series A Junior Preferred Stock, in an amount per share (rounded to the nearest

cent) equal to the greater of (a) $5.00 or (b) subject to the provision for

adjustment hereinafter set forth, 100 times the aggregate per share amount of

all cash dividends, and 100 times the aggregate per share amount (payable in

kind) of all non-cash dividends or other distributions other than a dividend

payable in shares of Common Stock or a subdivision of the outstanding shares, of

Common Stock (by reclassification or otherwise), to be or being declared on the

Common Stock, par value $1.00 per share, of the Corporation (the "Common Stock")

with respect to the same dividend period.  If the Quarterly Dividend Payment

Date is a Saturday, Sunday or legal holiday then such Quarterly Dividend Payment

Date shall be the first immediately preceding calendar day which is not a

Saturday, Sunday or legal holiday.  In the event the Corporation shall at any

time after December 31, 2001 (the "Rights Declaration Date") (i) declare any

dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the

outstanding Common Stock, or (iii) combine the outstanding Common Stock into a

smaller number of shares, then in each such case the amount to which holders of

shares of Series A Junior Preferred Stock were entitled immediately prior to

such event under clause (b) of the preceding sentence shall be adjusted by

multiplying such amount by a fraction the numerator of which is the number of

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.

 

     (b)  The Corporation shall declare a dividend or distribution on the Series

A Junior Preferred Stock as provided in paragraph (a) above immediately prior to

the time it declares a dividend or distribution on the Common Stock (other than

a dividend payable in shares of Common Stock); provided that, in the event no

dividend or distribution shall be declared on the Common Stock with respect to a

particular dividend period, a dividend of $5.00 per share on the Series A Junior

Preferred Stock shall nevertheless be payable on such Quarterly Dividend Payment

Date with respect to such quarterly period.

 

     (c)  Dividends shall begin to accrue and be cumulative on outstanding

shares of Series A Junior Preferred Stock from the Quarterly Dividend Payment

Date next preceding the date of issue of such shares of Series A Junior

Preferred Stock, unless the date of issue of such shares is prior to the record

date for the first Quarterly Dividend Payment Date, in which case dividends on

such shares shall begin to accrue from the date of issue of such shares, or

unless the date of issue is a Quarterly Dividend Payment Date or is a date after

the record date for the determination of holders of shares of Series A Junior

Preferred Stock entitled, to receive a quarterly dividend and before such

Quarterly Dividend Payment Date, in either of which events such dividends shall

begin to accrue and be cumulative from such Quarterly Dividend Payment Date.

Accrued but unpaid dividends shall not bear interest.  Dividends paid on the

shares of Series A Junior Preferred Stock in an amount less than the total

amount of such dividends at the time accrued and payable on such shares shall be

allocated pro rata on a share-by-share basis among all such shares at the time

outstanding.  The Board of Directors may fix a record date for the determination

of holders of shares of Series A Junior Preferred Stock entitled to receive

payment of a dividend or distribution declared thereon, which record date shall

be no more than 30 days prior to the date fixed for the payment thereof.

Dividends in arrears may be declared and paid at any time, without reference to

any Quarterly Dividend Payment Date, to holders of record on such date, not

exceeding 45 days preceding the payment date thereof, as may be fixed by the

Board of Directors.

 

     (d)  Except as hereinafter provided, no dividends shall be declared or paid

or set apart for payment on the shares of Series A Junior Preferred Stock for

any period if the Corporation shall be in default in the payment of any

dividends (including cumulative dividends, if applicable) on any shares of

Preferred Stock ranking, as to dividends, prior to the Series A Junior Preferred

Stock, unless the same shall be contemporaneously declared and paid.

 

     (e)  Dividends payable on the Series A Junior Preferred Stock for the

initial dividend period and, for any period less than a full quarterly period,

shall be computed on the basis of a 360-day year of 30-day months.

 

     Section 3.  Voting Rights.

 

     The holders of shares of Series A Junior Preferred Stock shall have the

following voting rights:

 

     (a)  Each share of Series A Junior Preferred Stock shall entitle the holder

thereof to one vote on all matters submitted to a vote of the stockholders of

the Corporation.  The holders of Series A Junior Preferred Stock shall be

entitled to notice of all meetings of the stockholders of the Corporation.

 

     (b)  Except as otherwise provided herein or by law, the holders of shares

of Series A Junior Preferred Stock and the holders of shares of Common Stock

shall vote together as one class on all matters submitted to a vote of

stockholders of the Corporation.

 

     (c)  If, on the date used to determine stockholders of record for any

meeting of stockholders for the election of directors, a default in preference

dividends on the Preferred Stock shall exist, the number of directors

constituting the Board of Directors of the Corporation shall be increased by

two, and the holders of the Preferred Stock of all series (whether or not

the holders of such series of Preferred Stock would be entitled to vote for the

election of directors if such default in preference dividends did not exist),

shall have the right at such meeting, voting together as a single class without

regard to series, to the exclusion of the holders of Common Stock, to elect two

directors of the Corporation to fill such newly created directorships.  Each

director elected by the holders of shares of Preferred Stock (herein called a

"Preferred Director"), shall continue to serve as such director for the full

term for which he shall have been elected, notwithstanding that prior to the end

of such term a default in preference dividends shall cease to exist.  Any

Preferred Director may be removed by, and shall not be removed except by, the

vote of the holders of record of the outstanding shares of Preferred Stock,

voting together as a single class without regard to series, at a meeting of the

stockholders, or of the holders of shares of Preferred Stock, called for the

purpose.  So long as a default in any preference dividends on the Preferred

Stock shall exist (i) any vacancy in the office of a Preferred Director may be

filled except as provided in the following clause (ii) by an instrument in

writing signed by the remaining Preferred Director and filed with the

Corporation and (iii) in the case of the removal of any Preferred Director, the

vacancy may be filled by the vote of the holders of the outstanding shares of

Preferred Stock, voting together as a single class without regard to series, at

the same meeting at which such removal shall be voted.  Each director appointed

as aforesaid by the remaining Preferred Director shall be deemed, for all

purposes hereof, to be a Preferred Director.  Whenever the term of office of the

Preferred Directors shall end and no default in preference dividends shall

exist, the number of directors constituting the Board of Directors of the

Corporation shall be reduced by two.  For the purposes of this paragraph (c), a

"default in preference dividends" on the Preferred Stock shall be deemed to have

occurred whenever the amount of accrued and unpaid dividends upon any series of

the Preferred Stock shall be equivalent to six full quarterly dividends or more,

and, having so occurred, such default shall be deemed to exist thereafter until,

but only until all accrued dividends on all shares of Preferred Stock of each

and every series then outstanding shall have been paid through the last

Quarterly Dividend Payment Date.

 

 

     Section 4.  Certain Restrictions.

 

     (a)  Whenever quarterly dividends or other dividends or distributions

payable on the Series A Junior Preferred Stock as provided in Section 2 are in

arrears, thereafter and until all accrued and unpaid dividends and

distributions, whether or not declared, on shares of Series A Junior Preferred

Stock outstanding shall have been paid in full, the Corporation shall not:

 

          (i)  declare or pay dividends on, or make any other distributions on

     (other than a dividend in Common Stock or in any other stock of the

     Corporation ranking junior to the Series A Junior Preferred Stock as to

     dividends and upon liquidation, dissolution or winding up and other than as

     provided in subparagraph (ii) of this section), or redeem or purchase or

     otherwise acquire for consideration (except by conversion into or exchange

     for stock of the Corporation ranking junior to the Series A Junior

     Preferred Stock as to dividends and upon dissolution, liquidation or

     winding up), any shares of stock ranking junior (either as to dividends or

     upon liquidation, dissolution or winding up) to the Series A Junior

     Preferred Stock;

 

          (ii)  declare or pay dividends on or make any other distributions on

     any shares of stock ranking on a parity (either as to dividends or upon

     liquidation, dissolution or winding up) with the Series A Junior Preferred

     Stock, except dividends paid ratably on the Series A Junior Preferred Stock

     and all stock ranking on a parity with the Series A Junior Preferred Stock

     as to dividends on which dividends are payable or in arrears in proportion

     to the total amounts to which the holders of all such shares are then

     entitled;

 

          (iii)  redeem or purchase or otherwise acquire for consideration

     shares of any stock ranking on a parity (either as to dividends or upon

     liquidation, dissolution or winding up) with the Series A Junior Preferred

     Stock, provided that the Corporation may at any time redeem, purchase or

     otherwise acquire shares of any such parity stock in exchange for shares of

     any stock of the Corporation ranking junior (as to dividends and upon

     dissolution, liquidation or winding up) to the Series A Junior Preferred

     Stock;

 

          (iv)  purchase or otherwise acquire for consideration any shares of

     Series A Junior Preferred Stock, except in accordance with a purchase offer

     made in writing or by publication (as determined by the Board of Directors)

     to all holders of such shares upon such terms as the Board of Directors,

     after consideration of the respective annual dividend rates and other

     relative rights and preferences of the respective series and classes, shall

     determine in good faith will result in fair and equitable treatment among

     the respective series or classes.

 

     (b)  The Corporation shall not permit any subsidiary of the Corporation to

purchase or otherwise acquire for consideration any shares of stock of the

Corporation unless the Corporation could, under paragraph (a) of this Section 4,

purchase or otherwise acquire such shares at such time and in such manner.

 

     Section 5.  Reacquired Shares.

 

     Any shares of Series A Junior Preferred Stock purchased or otherwise

acquired by the Corporation, in any manner whatsoever shall be retired and

cancelled promptly after the acquisition thereof.  All such shares shall upon

their cancellation become authorized but unissued shares of Preferred Stock and

may be reissued as part of a new series of Preferred Stock to be created by

resolution or resolutions of the Board of Directors, subject to the conditions

and restrictions on issuance set forth herein.

 

     Section 6.  Liquidation, Dissolution or Winding Up.

 

     (a)  In the event of any voluntary or involuntary liquidation, dissolution

or winding up of the Corporation, the holders of the Series A Junior Preferred

Stock shall be entitled to receive the greater of (a) $100 per share, plus

accrued dividends to the date of distribution, whether or not earned or

declared, or (b) an amount per share, subject to the provision for adjustment

hereinafter set forth, equal to 100 times the aggregate amount to be distributed

per share to holders of Common Stock (the "Series A Liquidation Preference").

In the event the Corporation shall at any time after the Rights Declaration Date

(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)

subdivide the outstanding Common Stock or (iii) combine the outstanding Common

Stock into a smaller number of shares, then in each such case the amount to

which holders of shares of Series A Junior Preferred Stock were entitled

immediately prior to such event pursuant to clause (b) of the preceding sentence

shall be adjusted by multiplying such amount by a fraction the numerator of

which is the number of shares of Common Stock outstanding immediately after such

event and the denominator of which is the number of shares of Common Stock that

were outstanding immediately prior to such event.

 

     (b)  In the event, however, that there are not sufficient assets available

to permit payment in full of the Series A Liquidation Preference and the

liquidation preferences of all other series of preferred stock, if any, which

rank on a parity with the Series A Junior Preferred Stock, then such remaining

assets shall be distributed ratably to the holders of such parity shares in

proportion to their respective liquidation preferences.

 

     Section 7.  Consolidation, Merger, etc.

 

     In case the Corporation shall enter into any consolidation, merger,

combination or other transaction in which the shares of Common Stock are

exchanged for or changed into other stock or securities, cash and/or any other

property, then in any such case the shares of Series A Junior Preferred Stock

shall at the same time be similarly exchanged or changed in an amount per share

(subject to the provision for adjustment hereinafter set forth) equal to 100

times the aggregate amount of stock, securities, cash and/or any other property

(payable in kind), as the case may be, into which or for which each share of

Common Stock is changed or exchanged.  In the event the Corporation shall at any

time after the Rights Declaration Date (i) declare any dividend on Common Stock

payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock,

or (iii) combine the outstanding Common Stock into a smaller number of shares,

then in each such case the amount set forth in the preceding sentence with

respect to the exchange or change of shares of Series A Junior Preferred Stock

shall be adjusted by multiplying such amount by a fraction the numerator of

which is the number of shares of Common Stock outstanding immediately after such

event and the denominator of which is the number of shares of Common Stock that

were outstanding immediately prior to such event.

 

     Section 8.  Optional Redemption.

 

     (a)  The Corporation shall have the option to redeem the whole or any part

of the Series A Junior Preferred Stock at any time on at least 30 days notice in

accordance with the provisions of paragraph (b) of this Section 8 at a

redemption price equal to, subject to the provision for adjustment hereinafter

set forth, 100 times the "current per share market price" of the Common Stock on

the date of the mailing of the notice of redemption, together with unpaid

accumulated dividends to the date of such redemption.   In the event the

Corporation shall at any time after December 31, 2001 (i) declare any dividend

on Common Stock payable in shares of Common Stock, (ii) subdivide the

outstanding Common Stock or (iii) combine the outstanding Common Stock into a

smaller number of shares, then in each such case the amount to which holders of

shares of Series A Junior Preferred Stock were otherwise entitled immediately

prior to such event under the preceding sentence shall be adjusted by

multiplying such amount by a fraction the numerator of which is the number of

shares of Common Stock outstanding immediately after such event and the

denominator of which is the number of shares of Common Stock that were

outstanding immediately prior to such event.  The "current per share market

price" on any date shall be deemed to be the average of the closing price per

share of such Common Stock for the 10 consecutive Trading Days (as such term is

hereinafter defined) immediately prior to such date.  The closing price for each

day shall be the last sale price, regular way, or, in case no such sale takes

place on such day, the average of the closing bid and asked prices regular way,

in either case as reported in the principal consolidated transaction reporting

system with respect to securities listed or admitted to trading on the New York

Stock Exchange or, if the Common Stock is not listed or admitted to trading on

the New York Stock Exchange, as reported in the principal consolidated

transaction reporting system with respect to securities listed or admitted to

trading on the principal national securities exchange on which the Common Stock

is listed or admitted to trading or, if the Common Stock is not listed or

admitted to trading on any national securities exchange, the last quoted price

or, if not so quoted the average of the high bid and low asked prices in the

over-the-counter market, as reported by the National Association of Securities

Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then

in use or, if on any such date the Common Stock is not quoted by any such

organization, the average of the closing bid and asked prices as furnished by

a professional market maker making a market in the Common Stock selected by

the Corporation.  If on such date no such market maker is making a market in

the Common Stock, the fair value of the Common Stock on such date as determined

in good faith by the Board of Directors of the Corporation shall be used.

The term "Trading Day" shall mean a day on which the principal national

securities exchange on which the Common Stock is listed or admitted to trading

is open for the transaction of business or, if the Common Stock is not listed or

admitted to trading on any national securities exchange, a Monday, Tuesday,

Wednesday, Thursday or Friday on which banking institutions in the State of New

York are not authorized or obligated by law or executive order to close.

 

     (b)  Whenever shares of Series A Junior Preferred Stock are to be redeemed,

the Corporation shall mail a notice ("Notice of Redemption") by first-class

mail, postage prepaid, to each holder of record of shares of Series A Junior

Preferred Stock to be redeemed and to the transfer agent for the Series A Junior

Preferred Stock.  The Notice of Redemption shall be addressed to the holder at

the address of the holder appearing on the stock transfer books of the

Corporation maintained by the transfer agent for the Series A Junior Preferred

Stock.  The Notice of Redemption shall include a statement of (i) the redemption

date, (ii) the redemption price, (iii) the number of shares of Series A Junior

Preferred Stock to be redeemed, (iv) the place or places where shares of the

Series A Junior Preferred Stock are to be surrendered for payment of the

redemption price, (v) that the dividends on the shares to be redeemed will cease

to accrue on such redemption date, and (vi) the provision under which redemption

is made.  No defect in the Notice of Redemption or in the mailing thereof shall

affect the validity of the redemption proceedings, except as required by law.

From the date on which a Notice of Redemption shall have been given as aforesaid

and the Corporation shall have deposited with the transfer agent for the Series

A Junior Preferred Stock a sum sufficient to redeem the shares of Series A

Junior Preferred Stock as to which Notice of Redemption has been given, with

irrevocable instructions and authority to pay the redemption price to the

holders thereof, or if no such deposit is made, then upon such date fixed for

redemption (unless the Corporation shall default in making payment of the

redemption price), all rights of the holders thereof as stockholders of the

Corporation by reason of the ownership of such shares (except their right to

receive the redemption price thereof, but without interest), shall terminate,

including, but not limited to, their right to receive dividends, and such shares

shall no longer be deemed outstanding.  The Corporation shall be entitled to

receive, from time to time, from the transfer agent for Series A Junior

Preferred Stock the interest, if any, on such monies deposited with it and, the

holders of any shares so redeemed shall have no claim to any such interest.  In

case the holder of any shares so called for redemption shall not claim the

redemption price for his shares within one year after the date of redemption,

the transfer agent for the Series A Junior Preferred Stock shall, upon demand,

pay over to the Corporation such amount remaining on deposit and the transfer

agent for the Series A Junior Preferred Stock shall thereupon be relieved of all

responsibility to the holders of such shares and such holder of the shares of

the Series A Junior Preferred Stock so called for redemption shall look only to

the Corporation for the payment thereof.

 

     (c)  In the event that fewer than all the outstanding shares of the Series

A Junior Preferred Stock are to be redeemed, the number of shares to be redeemed

shall be determined by the Board of Directors and the shares to be redeemed

shall be determined by lot or pro rata as may be determined by the Board of

Directors or by any other method as may be determined by the Board of Directors

in its sole discretion to be equitable.

 

     (d)  If the Corporation shall be in default in the payment of any dividends

(including cumulative dividends, if applicable) on any shares of Preferred Stock

ranking, as to dividends, prior to the Series A Junior Preferred Stock, then no

shares of the Series A Junior Preferred Stock shall be redeemed and the

Corporation shall not purchase or otherwise acquire any shares of the Series A

Junior Preferred Stock.

 

     Section 9.  Ranking.

 

     (a)  The Series A Junior Preferred Stock shall rank junior to all other

series of the Corporation's Preferred Stock as to the payment of dividends and

the distribution of assets upon liquidation, dissolution or winding up, unless

the terms of any such series shall provide otherwise.

 

     (b)  For purposes hereof, any stock of any class or classes of the

Corporation shall be deemed to rank:

 

          (i)  prior to the shares of the Series A Junior Preferred Stock,

     either as to dividends or upon liquidation, dissolution or winding up, if

     the holders of such class or classes shall be entitled to the receipt of

     dividends or of amounts distributable upon dissolution, liquidation or

     winding up of the Corporation, whether voluntary or involuntary, as the

     case may be, in preference or priority to the holders of shares of the

     Series A Junior Preferred Stock.  Each holder of any share of the Series A

     Junior Preferred Stock, by his acceptance thereof, expressly covenants and

     agrees that the rights of the holders of any shares of any other series of

     Preferred Stock of the Corporation to receive dividends or amounts

     distributable upon liquidation, dissolution or winding up of the

     Corporation, whether voluntary or involuntary, shall be and hereby are

     expressly prior to his rights unless in the case of any particular series

     of Preferred Stock the certificate or other instrument creating or

     evidencing the same expressly provides that the rights of the holders of

     such series shall not be prior to the shares of the Series A Junior

     Preferred Stock; and

 

          (ii)  on a parity with shares of the Series A Junior Preferred Stock,

     either as to dividends or upon liquidation, whether or not the dividend

     rates, dividend payment dates or redemption or liquidation prices per share

     or sinking fund provisions, if any, be different from those of the Series A

     Junior Preferred Stock, if the holders of such stock shall be entitled to

     the receipt of dividends or of amounts distributable upon dissolution,

     liquidation or winding up of the Corporation, whether voluntary or

     involuntary, as the case may be, in proportion to their respective dividend

     rates or liquidation prices, without preference or priority, one over the

     other, as between the holders of such stock and the holders of shares of

     the Series A Junior Preferred Stock; and

 

          (iii)  junior to shares of the Series A Junior Preferred Stock, either

     as to dividends or upon liquidation, if such class or classes shall be

     Common Stock or if the holders of shares of the Series A Junior Preferred

     Stock shall be entitled to receipt of dividends or of amounts distributable

     upon dissolution, liquidation or winding up of the Corporation, whether

     voluntary or involuntary, as the case may be, in preference or priority to

     the holders of shares of such class or classes.

 

     Section 10.  Amendment.

 

     Except as otherwise set forth in this Certificate of Incorporation,

Preferences and Rights with respect to the Series A Junior Preferred Stock,

holders of Series A Junior Preferred Stock shall not have any special powers and

their consent shall not be required for taking any corporate action, provided,

however, that:

 

     (1)  Unless the vote or consent of the holders of a greater number of

shares shall then be required by law, the consent of the holders of at least 66-

2/3% of all of the shares of the Series A Junior Preferred Stock at the time

outstanding, given in person or by proxy, either in writing or by a vote at a

meeting called for the purpose at which the holders of shares of the Series A

Junior Preferred Stock shall vote together as a separate class, shall be

necessary for authorizing, effecting or validating the amendment, alteration or

repeal of any of the provisions of the Certificate of Incorporation or of any

certificate amendatory thereof or supplemental thereto (including any

Certificate of Designation, Preferences and Rights or any similar document

relating to any series of Preferred Stock) so as to affect adversely the powers,

preferences, or rights, of this Series A Junior Preferred Stock.  The increase

of the authorized amount of the Preferred Stock, or the creation, authorization

or issuance of any shares of any other class of stock of the Corporation ranking

prior to or on a parity with the shares of the Series A Junior Preferred Stock

as to dividends or upon liquidation, or the reclassification of any authorized

or outstanding stock of the Corporation into any such prior or parity shares, or

the creation, authorization or issuance of any obligation or security

convertible into or evidencing the right to purchase any such prior or parity

shares shall not be deemed to affect adversely the powers, preferences or rights

of the Series A Junior Preferred Stock.

 

     Section 11.  Fractional Shares.

 

     Series A Junior Preferred Stock may be issued in fractions of a share which

shall entitle the holder, in proportion to such holder's fractional shares, to

exercise voting rights, receive dividends, participate in distributions and to

have the benefit of all other rights of holders of Series A Junior Preferred

Stock.

 

 

 

 

 

                                    EXHIBIT B

 

     7.00% SERIES B MANDATORY CONVERTIBLE PREFERRED SHARES

 

     Section 1.  Designation and Number of Shares.

 

     Out of the 40,000,000 shares of preferred stock of the Corporation

authorized by the Certificate of Incorporation of the Corporation, 5,750,000

shall be, and be designated as, 7.00% Series B Mandatory Convertible Preferred

Shares without par value (hereinafter referred to as this "Series").  The number

of authorized shares of this Series may be reduced by further resolution adopted

by the Board of Directors and by filing of a certificate pursuant to the

provisions of the General Corporation Law of the State of Delaware stating that

such reduction has been so authorized, but the number of authorized shares of

this Series shall not be increased.

 

     Section 2.  Ranking.

 

     This Series shall rank, with respect to dividends and distributions upon

the liquidation, winding-up or dissolution of the Corporation (i) senior to (a)

the Common Stock, par value $1.00 per share, of the Corporation (the "Common

Stock") and (b) to each other class or series of stock of the Corporation

(including any series of preferred stock established after February 4, 2003 by

the Board of Directors) the terms of which do not expressly provide that it

ranks senior to or on a parity with this Series as to dividends and

distributions upon the liquidation, winding-up or dissolution of the Corporation

and (ii) junior to any equity security, the terms of which expressly provide

that such class or series will rank senior to this Series as to dividends and

distributions upon liquidation, winding-up or dissolution of the Corporation.

 

     Section 3.  Dividends.

 

     (i)  General.  The dividend rate on shares of this Series shall be $3.50

per annum, provided that the initial dividend on this Series for the dividend

period commencing on February 10, 2003, to but excluding June 15, 2003, will be

$1.206 per share, in each case subject to adjustment as provided in Section

12(ii) hereof.  Cumulative cash dividends shall be payable quarterly when, as

and if declared by the Board of Directors of the Corporation or a duly

authorized committee thereof, out of the assets of the Corporation legally

available therefore on the 15th calendar day (or the following business day if

the 15th is not a business day) of March, June, September and December (each

such date being referred to herein as a "Dividend Payment Date"), provided, that

the initial dividend shall be payable, if declared, on June 15, 2003.  The

amount of dividends payable on each share of this Series for each quarterly

period thereafter shall be computed by dividing the annual dividend rate by

four.  The amount of dividends payable for any other period that is shorter or

longer than a dividend period will be computed on the basis of a 360-day year

consisting of twelve 30-day months.

 

     A dividend period is the period ending on the day before a Dividend Payment

Date and beginning on the preceding Dividend Payment Date or, if none, the date

of issue.  Dividends payable, if declared, on a Dividend Payment Date shall be

payable to Holders (as defined below) of record as they appear on the stock

register of the Corporation on the record date, which shall be the close of

business on the first calendar day of the calendar month in which the

applicable Dividend Payment Date falls (each, a "Dividend Record Date").

 

     Dividends on this Series shall be cumulative if the Corporation fails to

declare or pay one or more dividends on this Series in any amount, whether or

not the earnings or financial condition of the Corporation were sufficient to

pay such dividends in whole or in part.

 

     Holders of shares of this Series shall not be entitled to any dividend,

whether payable in cash, property or stock, in excess of the then applicable

full dividends calculated pursuant to this Section 3(i) (including accrued

dividends, if any) on shares of this Series.  No interest or sum of money in

lieu of interest shall be payable in respect of any dividend or payment which

may be in arrears.

 

     Dividends in arrears on this Series not declared for payment or paid on any

Dividend Payment Date may be declared by the Board of Directors of the

Corporation or a duly authorized committee thereof and paid on any date fixed by

the Board of Directors of the Corporation or a duly authorized committee

thereof, whether or not a Dividend Payment Date, to the Holders of record of the

shares of this Series, as they appear on the stock register of the Corporation

on a record date selected by the Board of Directors of the Corporation or a duly

authorized committee thereof, which shall be not more than 60 days prior to the

date fixed for such dividend payment.

 

     (ii)  Payment Restrictions.  The Corporation may not declare or pay any

dividend or make any distribution of assets (other than dividends paid or other

distributions made in capital stock of the Corporation ranking junior to this

Series as to the payment of dividends and the distribution of assets upon

liquidation, dissolution or winding-up and cash in lieu of fractional shares in

connection with any such dividend or distribution) on, or redeem, purchase or

otherwise acquire (except upon conversion or exchange for capital stock of the

Corporation ranking junior to this Series as to the payment of dividends and the

distribution of assets upon liquidation, dissolution or winding-up and cash in

lieu of fractional shares in connection with any such conversion or exchange),

the Corporation's Common Stock or any other stock of the Corporation ranking

junior to this Series as to the payment of dividends and the distribution of

assets upon liquidation, dissolution or winding-up, unless all accrued and

unpaid dividends on this Series for all prior dividend periods have been or

contemporaneously are declared and paid and the full quarterly dividend on this

Series for the current dividend period has been or contemporaneously is declared

and set apart for payment.

 

     Whenever all accrued and unpaid dividends on this Series for all prior

dividend periods are not paid in full, the Corporation may not redeem, purchase

or otherwise acquire (except upon conversion or exchange for capital stock of

the Corporation ranking junior to this Series as to the payment of dividends and

the distribution of assets upon liquidation, dissolution or winding-up and cash

in lieu of fractional shares in connection with any such conversion or

exchange), other capital stock of the Corporation then outstanding ranking on a

parity with this Series as to the payment of dividends and the distribution of

assets upon liquidation, dissolution or winding-up, including this Series.

 

     Section 4.  Liquidation Preference.

 

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

Corporation, the Holders of shares of this Series shall be entitled to receive

out of the assets of the Corporation legally available for distribution to

stockholders, before any distribution of assets is made on the Common Stock of

the Corporation or any other class or series of stock of the Corporation ranking

junior to this Series as to the distribution of assets upon liquidation,

dissolution or winding-up, a liquidating distribution, in the amount of $50 per

share, subject to adjustment as provided in Section 12(ii) hereof, plus an

amount equal to the sum of all accrued and unpaid dividends (whether or not

earned or declared) for the portion of the then-current dividend period until

the payment date and all dividend periods prior thereto.

 

     Neither the sale nor transfer of all or substantially all of the property

or business of the Corporation, nor the merger or consolidation of the

Corporation into or with any other corporation, nor the merger or consolidation

of any other corporation into or with the Corporation shall constitute a

liquidation, dissolution or winding-up, for the purposes of the foregoing

paragraph.  After the payment to the Holders of the shares of this Series of the

full preferential amounts provided for above, the Holders of the shares of this

Series as such shall have no right or claim to any of the remaining assets of

the Corporation.

 

     In the event the assets of the Corporation available for distribution to

the Holders of the shares of this Series upon any liquidation, dissolution or

winding-up of the Corporation, whether voluntary or involuntary, shall be

insufficient to pay in full all amounts to which such Holders are entitled as

provided above, no such distribution shall be made on account of any other stock

of the Corporation ranking on a parity with this Series as to the distribution

of assets upon such liquidation, dissolution or winding-up, unless a pro rata

distribution is made on this Series and such other stock of the Corporation,

with the amount allocable to each series of such stock determined on the basis

of the aggregate liquidation preference of the outstanding shares of each series

and distributions to the shares of each series being made on a pro rata basis.

 

     Section 5.  Voting Rights.

 

     (i)  The Holders of shares of this Series shall have no voting rights,

except as set forth below or as expressly required by applicable law.  In

exercising any such vote, each outstanding share of this Series shall be

entitled to one vote.

 

     (ii)  If the equivalent of six quarterly dividends payable, whether

consecutively or not, on this Series or any other class or series of preferred

stock ranking on a parity with this Series as to the payment of dividends has

not been paid, the number of directors of the Corporation shall be increased by

two (without duplication of any increase, resulting from the same failure to pay

dividends, made pursuant to the terms of any other series of preferred stock of

the Corporation ranking on a parity with this Series as to payment of dividends

and which does not have a separate class vote and upon which like voting rights

have been conferred and are exercisable (this Series, together with such other

class or classes, the "Electing Preferred Shares")), and the Holders of this

Series, voting as a single class with the holders of shares of any such other

class of preferred stock, shall have the exclusive right to vote for and to

elect such two directors at any meeting of stockholders of the Corporation at

which directors are to be elected held during the period such dividends remain

in arrears.  Each class or series of preferred stock entitled to vote for the

additional directors shall have a number of votes proportionate to the aggregate

liquidation preference of its outstanding shares.  Such voting right shall

continue until full cumulative dividends for all past dividend periods on all

such preferred stock of the Corporation, including any shares of this Series,

have been paid or declared and set apart for payment.  Any such elected

directors shall serve until the Corporation's next annual meeting of

stockholders (notwithstanding that prior to the end of such term the right to

elect directors shall cease to exist) or until their respective successors shall

be elected and qualify.

 

     (iii)  Whenever such exclusive voting right shall vest, it may be exercised

initially either at a special meeting of Holders of Electing Preferred Shares or

at any annual stockholders' meeting, but thereafter it shall be exercised only

at annual stockholders' meetings.  Any director who shall have been elected by

the Holders of Electing Preferred Shares as a class pursuant to this Section 5

may be removed at any time, either for or without cause by, and only by, the

affirmative votes of the Holders of record of a majority of the outstanding

shares of Electing Preferred Shares given at a special meeting of such

stockholders called for such purpose, and any vacancy created by such removal

may also be filled at such meeting.  Any vacancy caused by the death or

resignation of a director who shall have been elected by the Holders of Electing

Preferred Shares as a class pursuant to this Section 5 may be filled only by the

Holders of outstanding Electing Preferred Shares at a meeting called for such

purpose.

 

     Any meeting of the Holders of outstanding Electing Preferred Shares

entitled to vote as a class for the election or removal of directors shall be

held at the place at which the last annual meeting of stockholders was held.  At

such meeting, the presence in person or by proxy of the Holders of a majority of

the outstanding shares of all outstanding Electing Preferred Shares shall be

required to constitute a quorum; in the absence of a quorum, a majority of the

Holders present in person or by proxy shall have the power to adjourn the

meeting from time to time without notice, other than announcement at the

meeting, until a quorum shall be present.

 

     (iv)  So long as any shares of this Series is outstanding, the affirmative

vote or consent of the Holders of at least 66-2/3% of the outstanding shares of

this Series will be required for any amendment of the Certificate of

Incorporation of the Corporation (or any certificate supplemental thereto,

including any Certificate of Designation or any similar document relating to any

series of Preferred Stock) that will adversely affect the powers, preferences,

privileges or rights of this Series.  The affirmative vote or consent of the

Holders of at least 66-2/3% of the outstanding shares of this Series and any

other series of the preferred stock of the Corporation ranking on a parity with

this Series as to payment of dividends and the distribution of assets upon

liquidation, dissolution or winding-up, voting as a single class without regard

to series, will be required (a) to issue, authorize or increase the authorized

amount of, or issue or authorize any obligation or security convertible into or

evidencing a right to purchase, any additional class or series of stock ranking

prior to this Series as to payment of dividends or the distribution of assets

upon liquidation, dissolution or winding-up or (b) to reclassify any authorized

stock of the Corporation into any class or series of stock or any obligation or

security convertible into or evidencing a right to purchase such stock ranking

prior to this Series as to payment of dividends or the distribution of assets

upon liquidation, dissolution or winding-up; provided that such vote will not be

required for the Corporation to issue, authorize or increase the authorized

amount of, or issue or authorize any obligation or security convertible into or

evidencing a right to purchase, any stock ranking on a parity with or junior to

this Series as to payment of dividends and the distribution of assets upon

liquidation, dissolution or winding-up.

 

     Section 6.  Mandatory Conversion.

 

     (i)  Each share of this Series will automatically convert (unless

previously converted at the option of the Holder in accordance with Section 7,

or a Merger Early Settlement has occurred in accordance with Section 8) on June

15, 2006 or any New Conversion Date, if a Conversion Date Deferral has occurred

in accordance with Section 6(ii)(the "Conversion Date"), into a number of newly

issued shares of Common Stock equal to the Conversion Rate (as defined in

Section 9 below).  Dividends on the shares of this Series shall cease to accrue

and such shares of this Series shall cease to be outstanding on the Conversion

Date. The Corporation shall make such arrangements as it deems appropriate for

the issuance of certificates, if any, representing Common Stock, and for the

payment of cash in respect of accrued and unpaid dividends (whether or not

earned or declared) on this Series, if any, or cash in lieu of fractional

shares of Common Stock, if any, in exchange for and contingent upon surrender

of certificates representing the shares of this Series (if such shares are held

in certificated form).  The Corporation may defer the payment of dividends on

the Common Stock issuable upon conversion of shares of this Series and the

voting thereof until, and make such payment and voting contingent upon, the

surrender of the certificates representing the shares of this Series, provided

that the Corporation shall give the Holders of the shares of this Series such

notice of any such actions as the Corporation deems appropriate and upon such

surrender such Holders shall be entitled to receive such dividends declared and

paid on such Common Stock subsequent to the Conversion Date.  Amounts payable

in cash in respect of the shares of this Series or in respect of such Common

Stock shall not bear interest.  Transfer or similar taxes in connection with

the issuance of Common Stock to any person other than the Holder will be paid

by the Holder.

 

     (ii)  If the Board of Directors of the Corporation makes a determination in

good faith that the payment in cash on June 15, 2006 in respect of all accrued

and unpaid dividends on this Series would breach any of the terms of, or

constitute a default under, the terms of the Corporation's 10-3/4% Senior Notes

due August 1, 2008 (the "Senior Notes"), the Conversion Date shall be deferred

(a "Conversion Date Deferral") and the Corporation shall provide prompt notice

of such deferral to each Holder, but no earlier than 60 days before June 15,

2006.  The Corporation shall also deliver a copy of such notice to the Transfer

Agent.  Each such notice shall contain the calculations setting forth the Board

of Directors' determination as to the potential breach or default of the Senior

Notes.  Subsequent to any Conversion Date Deferral, promptly after any

determination by the Board of Directors of the Corporation in good faith that

the payment of cash in respect of all accrued and unpaid dividends on this

Series would not breach any of the terms of, or constitute a default under, the

terms of the Senior Notes, the Board of Directors shall declare a new conversion

date (the "New Conversion Date").  Upon such declaration, the Corporation shall

provide notice of the New Conversion Date to each Holder at least 30 days but

not more than 60 days before the New Conversion Date.  The New Conversion Date

shall be the first Dividend Payment Date that is at least 30 days after the

delivery of such notice.  The Corporation shall also deliver a copy of such

notice to the Transfer Agent.  Delivery of notice of a Conversion Date Deferral

or the New Conversion Date may be satisfied by publishing such notice in an

Authorized Newspaper on a Business Day.  Notwithstanding any Conversion Date

Deferral, dividends shall continue to accrue on this Series until conversion.

 

     Section 7.  Early Conversion at the Option of the Holder.

 

     (i)  Shares of this Series are convertible, in whole or in part, at the

option of the Holders thereof ("Optional Conversion"), at any time prior to the

Conversion Date, into shares of Common Stock at a rate of 3.1928 shares of

Common Stock for each share of this Series, subject to adjustment as set forth

in Section 9(ii) below.

 

     (ii)  Optional Conversion of shares of this Series may be effected by

delivering certificates evidencing such shares (if such shares are held in

certificated form), together with written notice of conversion and a proper

assignment of such certificates to the Corporation or in blank (and, if

applicable, payment of an amount equal to the dividend payable on such shares),

to the office of the Transfer Agent (as defined below) for this Series or to any

other office or agency maintained by the Corporation for that purpose and

otherwise in accordance with Optional Conversion procedures established by the

Corporation. Each Optional Conversion shall be deemed to have been effected

immediately prior to the close of business on the date on which the foregoing

requirements shall have been satisfied.

 

     (iii)  Holders of shares of this Series at the close of business on a

Dividend Record Date shall be entitled to receive the dividend payable on such

shares on the corresponding Dividend Payment Date notwithstanding the Optional

Conversion of such shares following such Dividend Record Date and prior to such

Dividend Payment Date.  However, shares of this Series surrendered for Optional

Conversion after the close of business on a Dividend Record Date and before the

opening of business on the next succeeding Dividend Payment Date must be

accompanied by payment in cash of an amount equal to the dividend payable on

such shares on such Dividend Payment Date.  Except as provided above, upon any

Optional Conversion of shares of this Series, the Corporation shall make no

payment or allowance for unpaid preferred dividends, whether or not in arrears,

on such shares of this Series as to which Optional Conversion has been effected

or for dividends or distributions on the Common Stock issued upon such Optional

Conversion.

 

     Section 8.  Early Conversion Upon Cash Merger.

 

     (i)  In the event of a merger or consolidation of the Corporation of the

type described in Section 9(iii) in which the shares of Common Stock outstanding

immediately prior to such merger or consolidation are exchanged for

consideration consisting of at least 30% cash or cash equivalents (any such

event, a "Cash Merger"), then the Corporation (or the successor to the

Corporation hereunder) shall be required to offer the Holder of each share of

this Series the right to convert shares of this Series prior to the Conversion

Date ("Merger Early Settlement") as provided herein.  On or before the fifth

Business Day after the consummation of a Cash Merger, the Corporation or, at the

request and expense of the Corporation, the Transfer Agent, shall give all

Holders notice of the occurrence of the Cash Merger and of the right of Merger

Early Settlement arising as a result thereof.  The Corporation shall also

deliver a copy of such notice to the Transfer Agent.  Each such notice shall

contain:

 

          (a)  the date, which shall be not less than 20 nor more than 30

     calendar days after the date of such notice, on which the Merger Early

     Settlement will be effected (the "Merger Early Settlement Date");

 

          (b)  the date, which shall be on or one Business Day prior to the

     Merger Early Settlement Date, by which the Merger Early Settlement right

     must be exercised;

 

          (c)  the Conversion Rate in effect immediately before such Cash

     Merger and the kind and amount of securities, cash and other property

     receivable by the Holder upon conversion of shares of this Series

     pursuant to Section 9(iii); and

 

          (d)  the instructions a Holder must follow to exercise the Merge

     Early Settlement right.

 

     (ii)  To exercise a Merger Early Settlement right, a Holder shall deliver

to the Transfer Agent at the Corporate Trust Office (as defined below) by 5:00

p.m., New York City time on or one Business Day before the date by which the

Merger Settlement right must be exercised as specified in the notice, the

certificate(s) (if such shares are held in certificated form) evidencing the

shares of this Series with respect to which the Merger Early Settlement right is

being exercised duly endorsed for transfer to the Corporation or in blank with a

written notice to the Corporation stating the Holder's intention to convert

early in connection with the Cash Merger and providing the Corporation with

payment instructions.

 

     (iii)  On the Merger Early Settlement Date, the Corporation shall deliver

or cause to be delivered the net cash, securities and other property to be

received by such exercising Holder determined by assuming the Holder had

converted, immediately before the Cash Merger at the Conversion Rate (as

adjusted pursuant to Section 9(ii)), the shares of this Series for which such

Merger Early Settlement right was exercised into shares of Common Stock.  In the

event a Merger Early Settlement right shall be exercised by a Holder in

accordance with the terms hereof, all references herein to Conversion Date shall

be deemed to refer to such Merger Early Settlement Date.

 

     (iv)  Upon a Merger Early Settlement, the Transfer Agent shall, in

accordance with the instructions provided by the Holder thereof on the notice

provided to the Corporation as set forth in paragraph (ii) above deliver to the

Holder such net cash, securities or other property issuable upon such Merger

Early Settlement together with payment in lieu of any fraction of a share, as

provided herein.

 

     (v)  In the event that Merger Early Settlement is effected with respect to

shares of this Series representing less than all the shares of this Series held

by a Holder, upon such Merger Early Settlement the Corporation (or the successor

to the Corporation hereunder) shall execute and the Transfer Agent shall

authenticate, countersign and deliver to the Holder thereof, at the expense of

the Corporation, a certificate evidencing the shares as to which Merger Early

Settlement was not effected.

 

     Section 9.  Definition of Conversion Rate:  Anti-dilution Adjustments.

 

     (i)  The "Conversion Rate" is equal to (a) if the Average Market Price (as

defined below) is greater than or equal to $15.66 (the "Threshold Appreciation

Price"), 3.1928 shares of Common Stock per share of this Series, (b) if the

Average Market Price is less than the Threshold Appreciation Price, but is

greater than $13.05, the number of shares of Common Stock per share of this

Series that equals $50 divided by the Average Market Price, and (c) if the

Average Market Price is equal to or less than $13.05, 3.8314 shares of Common

Stock per share of this Series, in each case subject to adjustment as provided

in Section 9(ii) (and in each case rounded upward or downward to the nearest

1/10,000th of a share).

 

     (ii)  Upon the occurrence of any of the following events, (x) the formula

for determining the Conversion Rate, (y) the number of shares of Common Stock to

be delivered on an early conversion as set forth in Sections 7 or 8 and (z) the

number of shares of Common Stock to be delivered on mandatory conversion if

there has been a Conversion Date Deferral as set forth in Section 6(ii), shall

each be subject to the following adjustments (in the case of clauses (y) and

(z), as though references to the Conversion Rate were replaced with references

to the number of shares of Common Stock to be delivered on such conversion):

 

          (a)  Stock Dividends.  In case the Corporation shall pay or make a

     dividend or other distribution on the shares of Common Stock in Common

     Stock, the Conversion Rate, as in effect at the opening of business on the

     day following the date fixed for the determination of stockholders entitled

     to receive such dividend or other distribution shall be increased by

     dividing such Conversion Rate by a fraction of which the numerator shall be

     the number of shares of Common Stock outstanding at the close of business

     on the date fixed for such determination and the denominator shall be the

     sum of such number of shares and the total number of shares constituting

     such dividend or other distribution, such increase to become effective

     immediately after the opening of business on the day following the date

     fixed for such determination.

 

          (b)  Stock Purchase Rights.  In case the Corporation shall issue

     (other than pursuant to a dividend reinvestment, share purchase or similar

     plan) rights, options or warrants to all holders of its Common Stock (not

     being available on an equivalent basis to Holders of the shares of this

     Series upon conversion) entitling them to subscribe for or purchase shares

     of Common Stock at a price per share less than the Current Market Price (as

     defined below) per share of the Common Stock on the date fixed for the

     determination of stockholders entitled to receive such rights, options or

     warrants, the Conversion Rate in effect at the opening of business on the

     day following the date fixed for such determination shall be increased by

     dividing such Conversion Rate by a fraction, the numerator of which shall

     be the number of shares of Common Stock outstanding at the close of

     business on the date fixed for such determination plus the number of shares

     of Common Stock which the aggregate of the offering price of the total

     number of shares of Common Stock so offered for subscription or purchase

     would purchase at such current Market Price and the denominator of which

     shall be the number of shares of Common Stock outstanding at the close of

     business on the date fixed for such determination plus the number of shares

     of Common Stock so offered for subscription or purchase, such increase to

     become effective immediately after the opening of business on the day

     following the date fixed for such determination.

 

          (c)  Stock Splits:  Reverse Splits.  In case outstanding shares of

     Common Stock shall be subdivided or split into a greater number of shares

     of Common Stock, the Conversion Rate in effect at the opening of business

     on the day following the day upon which such subdivision or split becomes

     effective shall be proportionately increased, and, conversely, in case

     outstanding shares of Common Stock shall each be combined into a smaller

     number of shares of Common Stock, the Conversion Rate in effect at the

     opening of business on the day following the day upon which such

     combination becomes effective shall be proportionately reduced, such

     increase or reduction, as the case may be, to become effective immediately

     after the opening of business on the day following the day upon which such

     subdivision, split or combination becomes effective.

 

          (d)  Debt or Asset Distributions.  (1) In case the Corporation shall,

     by dividend or otherwise, distribute to all holders of its Common Stock

     evidences of its indebtedness or assets (including securities, but

     excluding any rights, options or warrants referred to in paragraph (b) of

     this Section 9(ii), any dividend or distribution paid exclusively in cash

     and any dividend, shares of capital stock of any class or series, or

     similar equity interests, of or relating to a subsidiary or other business

     unit in the case of a Spin-Off referred to in the next subparagraph, or

     distribution referred to in paragraph (a) of this Section 9(ii)), the

     Conversion Rate shall be increased by dividing the Conversion Rate in

     effect immediately prior to the close of business on the date fixed for the

     determination of stockholders entitled to receive such distribution by a

     fraction, the numerator of which shall be the Current Market Price per

     share of the Common Stock on the date fixed for such determination less the

     then fair market value (as determined by the Board of Directors, whose

     determination shall be conclusive and described in a Board Resolution filed

     with the Transfer Agent) of the portion of the assets or evidences of

     indebtedness so distributed applicable to one share of Common Stock and the

     denominator of which shall be such Current Market Price per share of Common

     Stock, such adjustment to become effective immediately prior to the opening

     of business on the day following the date fixed for the determination of

     stockholders entitled to receive such distribution.  In any case in which

     this subparagraph (d)(1) is applicable, subparagraph (d)(2) of this

     Section 9(ii) shall not be applicable.

 

     (2)  In the case of a Spin-Off, the Conversion Rate in effect immediately

     before the close of business on the record date fixed for determination of

     stockholders entitled to receive that distribution will be increased by

     multiplying the Conversion Rate by a fraction, the numerator of which is

     the Current Market Price per share of Common Stock plus the Fair Market

     Value (as defined below) of the portion of those shares of Capital Stock or

     similar equity interests so distributed applicable to one share of Common

     Stock and the denominator of which is the Current Market Price per share of

     Common Stock.  Any adjustment to the Conversion Rate under this

     subparagraph (d)(2) will occur at the earlier of (A) the tenth Trading Day

     from, and including the effective date of, the Spin-Off and (B) the date of

     the securities being offered in the Initial Public Offering of the Spin-

     Off, if that Initial Public Offering is effected simultaneously with the

     Spin-Off.

 

          (e)  Cash Distributions.  In case the Corporation shall (1) by

     dividend or otherwise, distribute to all holders of its Common Stock cash

     (excluding any cash that is distributed in a Reorganization Event to which

     Section 9(iii) applies or as part of a distribution referred to in

     paragraph (d) of this Section 9(ii)) in an aggregate amount that combined

     together with (2) the aggregate amount of any other distributions to all

     holders of its Common Stock made exclusively in cash within the 12 months

     preceding the date of payment of such distribution and in respect of which

     no adjustment pursuant to this paragraph (e) or paragraph (f) of this

     Section 9(ii) has been made and (3) the aggregate of any such cash plus the

     fair market value, as of the date of the expiration of the tender or

     exchange offer referred to below (as determined by the Board of Directors,

     whose determination shall be conclusive and described in a Board

     Resolution), of the consideration payable in respect of any tender or

     exchange offer by the Corporation or any of its subsidiaries for all or any

     portion of the Common Stock concluded within the 12 months preceding the

     date of payment of the distribution described in clause (1) of this

     paragraph (e) and in respect of which no adjustment pursuant to this

     paragraph (e) or paragraph (f) of this Section 9(ii) has been made, exceeds

     15% of the product of the Current Market Price (as defined below) per share

     of Common Stock on the date for the determination of Holders of Common

     Stock entitled to receive such distribution times the number of shares of

     Common Stock outstanding on such date, then and in each such case,

     immediately after the close of business on such date for determination, the

     Conversion Rate shall be increased so that the same shall equal the rate

     determined by dividing the Conversion Rate in effect immediately prior to

     the close of business on the date fixed for determination of the

     stockholders entitled to receive such distribution by a fraction (A) the

     numerator of which shall be equal to the Current Market Price per share of

     Common Stock on the date fixed for such determination less an amount equal

     to the quotient of (x) the combined amount distributed or payable in the

     transactions described in clauses (1), (2) and (3) of this paragraph (e)

     and (y) the number of shares of Common Stock outstanding on such date for

     determination and (B) the denominator of which shall be equal to the

     Current Market Price per share of Common Stock on such date for

     determination.

 

          (f)  Tender Offers.  In case (1) a tender or exchange offer made by

     the Corporation or any subsidiary of the Corporation for all or any portion

     of the Common Stock shall expire and such tender or exchange offer (as

     amended upon the expiration thereof) shall require the payment to holders

     (based on the acceptance (up to any maximum specified in the terms of the

     tender or exchange offer) of Purchased Shares (as defined below)) of an

     aggregate consideration having a fair market value (as determined by the

     Board of Directors, whose determination shall be conclusive and described

     in a Board Resolution) that combined together with (2) the aggregate of

     such payment plus the fair market value (as determined by the Board of

     Directors, whose determination shall be conclusive and described in a

     Board Resolution), as of the expiration of such tender or exchange offer,

     of consideration payable in respect of any other tender or exchange offer

     by the Corporation or any subsidiary of the Corporation for all or any

     portion of the Common Stock expiring within the 12 months preceding the

     expiration of such tender or exchange offer and in respect of which no

     adjustment pursuant to paragraph (e) of this Section 9(ii) or this

     paragraph (f) has been made and (3) the aggregate amount of any

     distributions to all Holders of the Corporation's Common Stock made

     exclusively in cash within the 12 months preceding the expiration of

     such tender or exchange offer and in respect of which no adjustment

     pursuant to paragraph (e) of this Section 9(ii) or this paragraph (f)

     has been made, exceeds 15% of the product of the Current Market Price

     per share of Common Stock as of the last time (the "Expiration Time")

     tenders could have been made pursuant to such tender or exchange offer

     (as it may be amended) times the number of shares of Common Stock

     outstanding (including any tendered shares) on the Expiration Time, then,

     and in each such case, immediately prior to the opening of business on the

     day after the date of the Expiration Time, the Conversion Rate shall be

     adjusted so that the same shall equal the rate determined by dividing the

     Conversion Rate immediately prior to the close of business on the date of

     the Expiration Time by a fraction (A) the numerator of which shall be equal

     to (x) the product of (I) the Current Market Price per share of Common

     Stock on the date of the Expiration Time and (II) the number of shares of

     Common Stock outstanding (including any tendered shares) on the Expiration

     Time less (y) the amount of cash plus the fair market value (determined as

     aforesaid) of the aggregate consideration payable to stockholders based on

     the transactions described in clauses (1), (2) and (3) of this paragraph

     (f) (assuming in the case of clause (1) the acceptance, up to any maximum

     specified in the terms of the tender or exchange offer, of Purchased

     Shares), and (B) the denominator of which shall be equal to the product of

     (x) the Current Market Price per share of Common Stock as of the Expiration

     Time and (y) the number of shares of Common Stock outstanding (including

     any tendered shares) as of the Expiration Time less the number of all

     shares validly tendered and not withdrawn as of the Expiration Time (the

     shares deemed so accepted, up to any such maximum, being referred to as the

     "Purchased Shares").

 

          (g)  Reclassification.  The reclassification of Common Stock into

     securities including securities other than Common Stock (other than any

     reclassification upon a Reorganization Event to which Section 9(iii)

     applies) shall be deemed to involve (1) a distribution of such securities

     other than Common Stock to all Holders of Common Stock (and the effective

     date of such reclassification shall be deemed to be "the date fixed for the

     determination of stockholders entitled to receive such distribution" and

     the "date fixed for such determination" within the meaning of paragraph (d)

     of this Section 9(ii)), and (2) a subdivision, split or combination, as the

     case may be, of the number of shares of Common Stock outstanding

     immediately prior to such reclassification into the number of shares of

     Common Stock outstanding immediate thereafter (and the effective date of

     such reclassification shall be deemed to be "the day upon which such

     subdivision or split becomes effective" or "the day upon which such

     combination becomes effective," as the case may be, and "the day upon

     which such subdivision, split or combination becomes effective" within

     the meaning of paragraph (c) of this Section 9(ii)).

 

          (h)  Calculation of Adjustments.  All adjustments to the Conversion

     Rate shall be calculated to the nearest 1/10,000th of a share of Common

     Stock (or if there is not a nearest 1/10,000th of a share to the next lower

     1/10,000th of a share).  No adjustment in the Conversion Rate shall be

     required unless such adjustment would require an increase or decrease of at

     least 1% therein; provided, that any adjustments which by reason of this

     subparagraph are not required to be made shall be carried forward and taken

     into account in any subsequent adjustment. If an adjustment is made to the

     Conversion Rate pursuant to paragraph (a), (b), (c), (d), (e), (f), (g) or

     (i) of this Section 9(ii), an adjustment shall also be made to the Average

     Market Price solely to determine which of clauses (a), (b) or (c) of the

     definition of Conversion Rate will apply on the Conversion Date.  Such

     adjustment shall be made by multiplying the Average Market Price by a

     fraction, the numerator of which shall be the Conversion Rate immediately

     after such adjustment pursuant to paragraph (a), (b), (c), (d), (e), (f),

     (g) or (i) of this Section 9(ii) and the denominator of which shall be the

     Conversion Rate immediately before such adjustment; provided, that if such

     adjustment to the Conversion Rate is required to be made pursuant to the

     occurrence of any of the events contemplated by paragraph (a), (b), (c),

     (d), (e), (f) or (g) of this Section 9(ii) during the period taken into

     consideration for determining the Average Market Price, appropriate and

     customary adjustments shall be made to the Conversion Rate.

 

          (i)  Increase of Conversion Rate.  The Corporation may make such

     increases in the Conversion Rate, in addition to those required by this

     Section 9(ii), as it considers to be advisable in order to avoid or

     diminish any income tax to any Holders of Common Stock resulting from any

     dividend or distribution of stock or issuance of rights or warrants to

     purchase or subscribe for stock or from any event treated as such for

     income tax purposes or for any other reasons.  The Corporation shall have

     the power to resolve any ambiguity or correct any error in this Section

     9(ii) and its action in so doing, as evidenced by a resolution of the Board

     of Directors, shall be final and conclusive.

 

          (j)  Notice of Adjustment.  Whenever the Conversion Rate is adjusted

     in accordance with Section 9(ii), the Corporation shall:  (i) forthwith

     compute the Conversion Rate in accordance with Section 9(ii), and prepare

     and transmit to the Transfer Agent an Officer's Certificate setting forth

     the Conversion Rate, the method of calculation thereof in reasonable

     detail, and the facts requiring such adjustment and upon which such

     adjustment is based; and (ii) as soon as practicable following the

     occurrence of an event that requires an adjustment to the Conversion Rate

     pursuant to Sections 9(ii) (or if the Corporation is not aware of such

     occurrence, as soon as practicable after becoming so aware) provide a

     written notice to the Holders of this Series of the occurrence of such

     event and a statement setting forth in reasonable detail the method by

     which the adjustment to the Conversion Rate was determined and setting

     forth the adjusted Conversion Rate.

 

          (iii)     In the event of:

 

               (a)  any consolidation or merger of the Corporation with or into

     another person (other than a merger or consolidation in which the

     Corporation is the surviving corporation and in which the Common Stock

     outstanding immediately prior to the merger or consolidation is not

     exchanged for cash, securities or other property of the Corporation

     or another corporation); or

 

               (b)  any sale, transfer, lease or conveyance to another person of

     the property of the Corporation as an entirety or substantially as an

     entirety; or

 

               (c)  any statutory exchange of securities of the Corporation with

     another person (other than in connection with a merger or acquisition) (any

     such event, a "Reorganization Event"):

 

each share of this Series outstanding immediately prior to such Reorganization

Event shall, after such Reorganization Event, be convertible solely into the

kind and amount of securities, cash and other property receivable in such

Reorganization Event (without any interest thereon, and without any right to

dividends or distribution thereon that have a record date that is prior to the

Conversion Date) by a holder of the number of shares of Common Stock (including

fractional shares for this purpose) into which such share of this Series (x)

might have been converted immediately prior to such Reorganization Event

pursuant to Section 7(i), in the case of any conversion of a share of this

Series at the option of the Holder thereof, or (y) would have been converted

pursuant to Section 6(i) if the Conversion Date had occurred immediately prior

to such Reorganization Event, in the case of the mandatory conversion of a share

of this Series on the Conversion Date, assuming in each case that such holder of

such shares of Common Stock (1) is not a person with which the Corporation

consolidated or into which the Corporation merged or which merged into the

Corporation or to which such sale or transfer was made, as the case may be (any

such person, a "Constituent Person"), or an Affiliate (as defined below) of a

Constituent Person to the extent such Reorganization Event provides for

different treatment of Common Stock held by Affiliates of the Corporation and

non-Affiliates, and (2) failed to exercise his rights of election, if any, as to

the kind or amount of securities, cash and other property receivable upon such

Reorganization Event (provided that if the kind or amount of securities, cash

and other property receivable upon such Reorganization Event is not the same for

each share of Common Stock held immediately prior to such Reorganization Event

by other than a Constituent Person or an Affiliate thereof and in respect of

which such rights of election shall not have been exercised ("Non-electing

Share"), then for the purpose of this Section 9(iii) the kind and amount of

securities, cash and other property receivable upon such Reorganization Event by

each Non-electing Share shall be deemed to be the kind and amount so receivable

per share by a plurality of the Non-electing Shares).

 

          In the event of such a Reorganization Event, the person formed by such

consolidation, merger or exchange or the person which acquires the assets of the

Corporation shall execute and deliver to the Transfer Agent an agreement

supplemental hereto providing that the Holder of each share of this Series shall

have the rights provided by this Section 9(iii).  Such supplemental agreement

shall provide for adjustments which, for events subsequent to the effective date

of such supplemental agreement, shall be as nearly equivalent as may be

practicable to the adjustments provided for in this Section 9.  The above

provisions of this Section 9(iii) shall similarly apply to successive

Reorganization Events.

 

     Section 10.  Definitions.

 

     (i)  "Affiliate" has the same meaning as given to that term in Rule 405 of

the Securities Act of 1933, as amended, or any successor rule thereunder.

 

     (ii)  "Authorized Newspaper" means a newspaper customarily published at

least once a day for at least five days in each calendar week and of general

circulation in New York City.  Such publication (which may be in different

newspapers) is expected to be made in the Eastern edition of The Wall Street

Journal.

 

     (iii)  The "Average Market Price" means the average of the Closing Prices

(as defined below) per share of the Common Stock on each of the 20 consecutive

Trading Days (as defined below) ending on the third Trading Day immediately

preceding (a) June 15, 2006 or, if earlier, the date immediately prior to a

Reorganization Event with respect to a conversion pursuant to Section 6 or (b)

the date immediately prior to a Cash Merger with respect to a conversion

pursuant to Section 8.

 

     (iv)  "Business Day" means any day other than a Saturday or Sunday or any

other day on which banks in The City of New York are authorized or required by

law or executive order to close.

 

     (v)  The "Closing Price" of the Common Stock or any securities distributed

in a Spin-Off, as the case may be, on any date of determination means the

closing sale price (or, if no closing price is reported the last reported sale

price) per share on the New York Stock Exchange ("NYSE") on such date or, if

such security is not quoted for trading on NYSE on any such date, as reported in

the composite transactions for the principal United States securities exchange

on which such security is so listed or quoted, or if such security is not so

listed or quoted on a United States national or regional securities exchange, as

reported by NYSE, or, if such security is not so reported, the last quoted bid

price for the such security in the over-the-counter market as reported by the

National Quotation Bureau or similar organization, or, if such bid price is not

available, the market value of such security on such date as determined by a

nationally recognized independent investment banking firm retained for this

purpose by the Corporation.

 

     (vi)  "Corporate Trust Office" means the principal corporate trust office

of the Transfer Agent at which, at any particular time, its corporate trust

business shall be administered.

 

     (vii)  "Current Market Price" means (a) on any day the average of the

Closing Prices for the five consecutive Trading Days preceding the earlier of

the day preceding the day in question and the day before the "ex date" with

respect to the issuance or distribution requiring computation, (b) in the case

of any Spin-Off that is effected simultaneously with an Initial Public Offering

of the securities being distributed in the Spin-Off, the Closing Price of the

Common Stock on the Trading Day on which the initial public offering price of

the securities being distributed in the Spin-Off is determined, and (c) in the

case of any other Spin-Off, the average of the Closing Prices of the Common

Stock over the first 10 Trading Days after the effective date of such Spin-Off.

For purposes of this paragraph, the term "ex 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.

 

 

     (viii)  "Fair Market Value" means (a) in the case of any Spin-Off that is

effected simultaneously with an Initial Public Offering of such securities, the

initial public offering price of those securities, and (b) in the case of any

other Spin-Off, the average of the Closing Prices of those securities over the

first 10 Trading Days after the effective date of such Spin-Off.

 

     (ix)  "Holder" means the person in whose name any shares of this Series are

registered in the books and records of the Corporation.

 

     (x)  "Initial Public Offering" means the first time securities of the same

class or type as the securities being distributed in the Spin-Off are offered to

the public for cash.

 

     (xi)  "Spin-Off" means a dividend or other distribution of shares of

capital stock of any class or series, or similar equity interests, of or

relating to a subsidiary or other business unit of the Corporation.

 

     (xii)  "Trading Day" means a day on which the Common Stock (A) is not

suspended from trading on any national or regional securities exchange or

association or over-the-counter market at the close of business and (B) has

traded at least once on the national or regional securities exchange or

association or over-the-counter market that is the primary market for the

trading of the Common Stock.

 

     (xiii)  "Transfer Agent" shall be the Shareholder Services Division of the

Corporation unless and until a successor is selected by the Corporation, and

then such successor.

 

     Section 11.  Fractional Shares.

 

     No fractional Common Stock shall be issued upon the conversion of any

shares of this Series.  In lieu of any fraction of a share of Common Stock that

would otherwise be issuable in respect of the aggregate number of shares of this

Series surrendered by the same Holder upon a conversion as described in Sections

7(i), 8 or 9(i), such Holder shall have the right to receive an amount in cash

(computed to the nearest cent) equal to the same fraction of (a) in the case of

Section 9(i), the Current Market Price or (b) in the case of Sections 7(i) or 8,

the Closing Price of the Common Stock determined as of the second Trading Day

immediately preceding the effective date of conversion.

 

     Section 12.  Miscellaneous.

 

     (i)  Procedures for conversion of shares of this Series, in accordance with

Sections 6, 7 or 8, not held in certificated form will be governed by

arrangements among the depositary, participants and persons that may hold

beneficial interests through participants designed to permit conversion without

the physical movement of certificates.  Payments, transfers, deliveries,

exchanges and other matters relating to beneficial interests in global security

certificates may be subject to various policies and procedures adopted by the

depositary from time to time.

 

     (ii)  The liquidation preference and the annual dividend rate set forth

herein, each shall be subject to equitable adjustment whenever there shall occur

a stock split, combination, reclassification or other similar event involving

this Series.  Such adjustments shall be determined in good faith by the Board

of Directors and submitted by the Board of Directors to the Transfer Agent.

 

     (iii)  For the purposes of Section 9, 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 will not

pay any dividend or make any distribution with respect to shares held in

treasury.

 

     (iv)  If the Corporation shall take any action affecting the Common Stock,

other than action described in Section 9, that in the opinion of the Board of

Directors would materially adversely affect the conversion rights of the Holders

of the shares of this Series, then (x) the Conversion Rate, (y) the number of

shares of Common Stock to be delivered on an early conversion as set forth in

Sections 7 or 8 and/or (z) the number of shares of Common Stock to be delivered

on mandatory conversion if there has been a Conversion Date Deferral as set

forth in Section 6(ii) may each be adjusted, to the extent permitted by law, in

such manner, if any, and at such time, as the Board of Directors may determine

to be equitable in the circumstances.

 

     (v)  The Corporation covenants that it will at all times reserve and keep

available, free from preemptive rights, out of the aggregate of its authorized

but unissued Common Stock for the purpose of effecting conversion of this

Series, the full number of shares of Common Stock deliverable upon the

conversion of all outstanding shares of this Series not theretofore converted.

For purposes of this Section 12(v), the number of shares of Common Stock that

shall be deliverable upon the conversion of all outstanding shares of this

Series shall be computed as if at the time of computation all such outstanding

shares were held by a single Holder.

 

     (vi)  The Corporation covenants that any shares of Common Stock issued upon

conversion of shares of this Series shall be validly issued, fully paid and non-

assessable.

 

     (vii)  The Corporation shall endeavor to list the shares of Common Stock

required to be delivered upon conversion of shares of this Series, prior to such

delivery, upon each national securities exchange or quotation system, if any,

upon which the outstanding shares of Common Stock are listed at the time of such

delivery.

 

     (viii)  The Corporation will pay any and all documentary stamp or similar

issue or transfer taxes payable in respect of the issue or delivery of shares of

Common Stock or other securities or property on conversion of shares of this

Series pursuant thereto; provided, however, that the Corporation shall not be

required to pay any tax that may be payable in respect of any transfer involved

in the issue or delivery of shares of Common Stock or other securities or

property in a name other than that of the Holder of this Series to be converted

and no such issue or delivery shall be made unless and until the person

requesting such issue or delivery has paid to the Corporation the amount of any

such tax or established, to the reasonable satisfaction of the Corporation, that

such tax has been paid.

 

     (ix)  This Series is not redeemable.

 

     (x)  All shares of this Series shall be deemed outstanding, except from the

date of registration of transfer, all shares of this Series held of record by

the Corporation or any subsidiary of the Corporation.

 

 

     (xi)  Whenever possible, each provision hereof shall be interpreted in a

manner as to be effective and valid under applicable law, but if any provision

hereof is held to be prohibited by or invalid under applicable law, such

provision shall be ineffective only to the extent of such prohibition or

invalidity, without invalidating or otherwise adversely affecting the remaining

provisions hereof.  If the court of competent jurisdiction should determine that

a provision hereof would be valid or enforceable if a period of time were

extended or shortened or a particular percentage were increased or decreased,

then such court may make such change as shall be necessary to render the

provision in question effective and valid under applicable law.

 

     (xii)  This Series may be issued in fractions of a share which shall

entitle the Holder, in proportion to such Holder's fractional shares, to

exercise voting rights, receive dividends, participate in distributions and have

the benefit of all other rights of Holders of this Series.

 

     (xiii)  Subject to applicable escheat laws, any monies set aside by the

Corporation in respect of any payment with respect to shares of this Series, or

dividends thereon, and unclaimed at the end of two years from the date upon

which such payment is due and payable shall revert to the general funds of the

Corporation, after which reversion the Holders of such shares shall look only to

the general funds of the Corporation for the payment thereof.  Any interest

accrued on funds so deposited shall be paid to the Corporation from time to

time.

 

     (xiv)  Except as may otherwise be required by law, the shares of this

Series shall not have any voting powers, preferences and relative,

participating, optional or other special rights, other than those specifically

set forth in this Certificate of Incorporation.

 

     (xv)  The headings of the various subdivisions hereof are for convenience

of reference only and shall not affect the interpretation of any of the

provisions hereof.

 

     (xvi)  If any of the voting powers, preferences and relative participating,

optional and other special rights of this Series and qualifications, limitations

and restrictions thereof set forth herein is invalid, unlawful or incapable of

being enforced by reason of any rule of law or public policy, all other voting

powers, preferences and relative participating, optional and other special

rights of this Series and qualifications, limitations and restrictions thereof

set forth herein that can be given effect without the invalid, unlawful or

unenforceable voting powers, preferences and relative participating, optional

and other special rights of this Series and qualifications, limitations and

restrictions thereof shall, nevertheless, remain in full force and effect, and

no voting powers, preferences and relative participating, optional or other

special rights of this Series and qualifications, limitations and restrictions

thereof herein set forth shall be deemed dependent upon any other such voting

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

of this Series and qualifications, limitations and restrictions thereof unless

so expressed herein.

 

     (xvii)  Shares of this Series that have been issued and reacquired in any

manner, including shares purchased or exchanged or converted, shall (upon

compliance with any applicable provisions of the laws of Delaware) have the

status of authorized but unissued shares of preferred stock of the Corporation

undesignated as to series and may be designated or redesignated and issued or

reissued, as the case may be, as part of any series of preferred stock of the

Corporation, provided that any issuance of such shares as this Series must be

in compliance with the terms hereof.

 

     (xviii)  If any certificates of shares of this Series shall be mutilated,

lost, stolen or destroyed, the Corporation shall issue, in exchange and in

substitution for and upon cancellation of the mutilated certificates of shares

of this Series, or in lieu of and substitution for certificates of this Series

lost, stolen or destroyed, a new certificate of this Series and of like tenor

and representing an equivalent amount of shares of this Series, but only upon

receipt of evidence of such loss, theft or destruction of such certificate of

this Series and indemnity, if requested, satisfactory to the Corporation and the

Transfer Agent.  The Corporation is not required to issue any certificates

representing shares of this Series on or after the Conversion Date.  In place of

the delivery of a replacement certificate following the Conversion Date, the

Transfer Agent, upon delivery of the evidence and indemnity described above,

will deliver shares of Common Stock pursuant to the terms of this Series

evidenced by the certificate.

 

 

 

 

Amended and Restated Article Seventh of the Restated Certificate of Incorporation of United States Steel Corporation

SEVENTH: The number of directors of the Corporation shall be fixed from time to time by, or in the manner provided in, its by-laws and may be increased or decreased as therein provided; but the number thereof shall not be less than three.

The directors of the Corporation shall be classified as follows: The term of office for the class of directors elected at the 2012 annual meeting of stockholders shall expire at the 2015 annual meeting of stockholders; the term of office for the class of directors elected at the 2013 annual meeting of stockholders shall expire at the 2016 annual meeting of stockholders; and the term of office for the class of directors elected at the 2014 annual meeting of stockholders shall expire at the 2017 annual meeting of stockholders, with the members of each such class to hold office until their successors are elected and qualified. The directors elected at the 2015 annual meeting of stockholders and at each subsequent annual meeting of stockholders shall hold office for a term expiring at the next annual meeting of stockholders and until their successors are elected and qualified.

In the case of any vacancy created by an increase in the number of directors of the Corporation, the additional director or directors shall be elected by the Board of Directors, and such additional director or directors so elected shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified.

In the case of any vacancy in the Board of Directors from any cause other than an increase in the number of directors, a successor to hold office for the unexpired portion of the term of the director whose place became vacant shall be elected by a majority of the Board of Directors then in office, though less than a quorum.

Directors of the Corporation may be removed only for cause until the election of directors at the 2017 annual meeting of stockholders.

 

[As Filed: 03-14-2014]