DESCRIPTION OF CAPITAL STOCK
General
We are authorized to issue up to
500,000,000 shares of common stock, par value $0.01 per share, and 60,000,000 shares of preferred stock, no par value, of which 2,000,000 shares have been designated 5.50% Series A Convertible Preferred Stock (Series A Preferred Stock),
none of which are outstanding, 1,000,000 shares have been designated 4.0% Series B Convertible Preferred Stock (the Series B Preferred Stock), all of which are outstanding, and up to 1,435,000 shares have been designated 5.0% Series C
Convertible Preferred Stock (the Series C Preferred Stock and, together with the Series A Preferred Stock and the Series B Preferred Stock, the Preferred Stock), 1,018,019 of which are currently outstanding. Any additional
series of preferred stock designated out of the remaining authorized shares of preferred stock shall have such rights, preferences and limitations as authorized in our Second Amended and Restated Certificate of Incorporation, as amended (the
Certificate) and as determined by resolutions adopted by the Board of Directors of the Company (the Board). The rights of holders of the common stock shall be subject to the rights of holders of any series of preferred stock
that may be issued from time to time, including liquidation rights, special voting rights and preferences with respect to payment of dividends.
Dividends
Subject to applicable law and
to the designated preferential rights of any outstanding series of preferred stock that the Board may cause to be issued, from time to time, the holders of common stock will be entitled to dividends as may be declared from time to time by the Board
pursuant to the provisions of the New Jersey Business Corporation Act.
Holders of Series B Preferred Stock are entitled to receive cash
dividends in an amount equal to the dividend rate of 4.0% per annum of the liquidation preference of $100.00 per share of Series B Preferred Stock. Dividends on the Series B Preferred Stock will be paid in cash if the Company has funds legally
available for payment and the Board, or an authorized committee thereof, declares a cash dividend payable.
Unless (i) all
accumulated and unpaid dividends on the Series B Preferred Stock have been paid in full or a sum for such amounts has been set aside for payment or (ii) the Company has fully performed its obligation to redeem in full all outstanding shares of
the Series B Preferred Stock, the Company may not declare dividends on shares of common stock or any other shares of the Companys stock ranking junior to the Series B Preferred Stock and may not purchase, redeem or otherwise acquire such
shares, subject to certain customary exceptions.
Holders of the Series C Preferred Stock are entitled to receive dividends payable in-kind in the form of additional shares of the Series C Preferred Stock in an amount equal to 5.0% per annum of the liquidation preference per share of the Series C Preferred Stock. The Series C
Preferred Stock has an initial liquidation preference of $100.00 per share. If dividends on the Series C Preferred Stock are not declared and paid for any given fiscal quarter, the liquidation preference is automatically increased by the amount of
such unpaid dividends. Holders of the Series C Preferred Stock are also entitled to participate in any dividends paid on the common stock (other than stock dividends) in an amount equal to the amount of such dividends which would be payable on the
number of shares of common stock into which such shares of the Series C Preferred Stock could be converted on the applicable record date, with such dividends on any shares of the Series C Preferred Stock being payable upon conversion of such shares
of the Series C Preferred Stock into common stock.
Unless (i) all accumulated and unpaid dividends on the Series C Preferred Stock
have been paid in full in the form of additional shares of the Series C Preferred Stock or the liquidation preference has been increased by the amount of any unpaid dividends or (ii) the Company has fully performed its obligation to redeem in
full all outstanding shares of the Series C Preferred Stock, the Company may not declare dividends on shares of common stock or any other shares of the Companys stock ranking junior to the Series C Preferred Stock and may not purchase, redeem
or otherwise acquire such shares, subject to certain customary exceptions.
Ranking
The common stock ranks junior to the Series B Preferred Stock and the Series C Preferred Stock as to payment of dividends and distributions of
assets upon the liquidation, dissolution or winding up of Company.
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