CERTIFICATE OF THE POWERS, DESIGNATIONS, PREFERENCES AND RIGHTS OF THE 6.5% CONVERTIBLE EXCHANGEABLE PREFERRED STOCK ($0.01 PAR VALUE) (CUMULATIVE DIVIDEND, LIQUIDATION PREFERENCE $50 PER SHARE) OF ACUSPHERE, INC. PURSUANT TO SECTION 151(g) OF THE …

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Exhibit 3.1

CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE

6.5% CONVERTIBLE EXCHANGEABLE PREFERRED STOCK
($0.01 PAR VALUE)
(CUMULATIVE DIVIDEND, LIQUIDATION PREFERENCE $50 PER SHARE)

OF ACUSPHERE, INC.

PURSUANT TO SECTION 151(g) OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE

THE UNDERSIGNED, being the Secretary of Acusphere, Inc., a Delaware corporation (the”Company“), DOES HEREBY CERTIFY that, pursuant to the provisions of Section 151(g) of the GeneralCorporation Law of the State of Delaware, the following resolutions were duly adopted by a Financing Committee of the Board of Directors of the Company, and, pursuant to authority conferred upon theBoard of Directors by the provisions of the Amended and Restated Certificate of Incorporation of the Company (the “Certificate of Incorporation“) anddelegated to the Financing Committee in accordance with Section 141(c)(2) of the General Corporation Law of the State of Delaware by express resolution of the Board of Directors, the FinancingCommittee adopted resolutions fixing the designation and the relative powers, preferences, rights, qualifications, limitations and restrictions of such stock. These composite resolutions are asfollows:

RESOLVED, that pursuant to authority expressed granted to and vested in the Board of Directors of the Company by the provisions of the Certificate ofIncorporation, the issuance of a series of preferred stock, par value $0.01 per share, which shall consist of up to 1,000,000 of the 5,000,000 shares of preferred stock which the Company now hasauthority to issue, be, and the same hereby is,authorized, and the Board hereby fixes the powers, designations, preferences and relative, participating, optional and other special rights, and the qualifications, limitations and restrictionsthereof (in addition to the powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, set forth inthe Certificate of Incorporation which may be applicable to the preferred stock of this series) as follows:

1. Number of Shares and Designation.    1,000,000 shares of the preferred stock, par value $0.01 per share, of the Company are herebyconstituted as a series of the preferred stock designated as 6.5% Convertible Exchangeable Preferred Stock (the “Preferred Stock“).

2. Definitions.    For purposes of the Preferred Stock, in addition to those terms otherwise defined herein, the following terms shall havethe meanings indicated:

    Affiliate” of any specified person shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect commoncontrol with such specified person. For the purposes of this definition, “control,” when used with respect to any specified person means the power to direct or cause the direction of the managementand policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.

    Applicable Price” shall have the meaning specified in Section 7(l).

    “Automatic Conversion” shall have the meaning specified in Section 7(j).

    “Automatic Conversion Date” shall have the meaning specified in Section 7(j).

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    “Automatic Conversion Notice” shall have the meaning specified in Section 7(j).

    Board of Directors” shall mean the Board of Directors of the Company or a committee of such Board duly authorized to act for it hereunder.

    Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by theBoard of Directors and to be in full force and effect on the date of such certification, and delivered to the Transfer Agent.

    Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the banking institutions in The City of New York,New York are authorized or obligated by law or executive order to close or be closed.

    Commission” shall mean the Securities and Exchange Commission.

    Common Stock” shall mean the class of capital stock of the Company designated as Common Stock, par value $0.01 per share, at the date hereof. Subjectto the provisions of Section 7(e), shares issuable on conversion of the Preferred Stock shall include only shares of such class or shares of any class or classes resulting from anyreclassification or reclassifications thereof and which have no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution orwinding up of the Company and which are not subject to redemption by the Company; provided that if at any time there shall be more than one suchresulting class, the shares of each such class then so issuable shall be substantially in the proportion which the total number of shares of such class resulting from all such reclassifications bearsto the total number of shares of all such classes resulting from all such reclassifications.

    Common Stock Fundamental Change” shall have the meaning specified in Section 7(l).

    Company” shall mean Acusphere, Inc., a Delaware corporation, and, shall include its successors and assigns.

    Conversion Price” shall have the meaning specified in Section 7(a).

    Custodian” shall mean the Transfer Agent, as custodian with respect to the Global Certificate, or such other custodian or custodians of the Company asmay be designated by the Board of Directors of the Company as custodian with respect to the Global Certificate.

    Debentures” shall mean the Company’s 6.5% Convertible Subordinated Debentures, issued under an Indenture, dated as of February 24, 2005 betweenthe Company and The Bank of New York, as trustee (the “Indenture“).

    Depositary” means, with respect to the Preferred Stock issuable or issued in the form of a Global Certificate, the person specified inSection 13 as the Depositary with respect to the Preferred Stock, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Certificate, andthereafter, “Depositary” shall mean or include such successor. The foregoing sentence shall likewise apply to any subsequent successor or successors.

    Dividend Payment Date” shall have the meaning specified in Section 3(a).

    Dividend Payment Record Date” shall have the meaning specified in Section 3(a).

    Dividend Periods” shall mean quarterly dividend periods commencing on the first day of March, June, September and December of each year and ending onand including the day preceding the first day of the next succeeding Dividend Period (other than the initial Dividend Period which shall commence on the Issue Date and end on and includeMay 31, 2005).

    Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


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    Exchange Date” shall have the meaning specified in Section 10(b).

    Fundamental Change” shall have the meaning specified in Section 7(l).

    Global Certificate” shall have the meaning specified in Section 13(a).

    holder,” “holder of shares of Preferred Stock,” or “holder of the PreferredStock,” as applied to any share of Preferred Stock, or other similar terms (but excluding the term “beneficial holder”), shall mean any person in whose name at the time aparticular share of Preferred Stock is registered on the Company’s stock records, which shall include the books of the Transfer Agent in respect of the Company and any stock transfer books of theCompany.

    Issue Date” shall mean the first date on which shares of the Preferred Stock are issued.

    “Liquidation Preference” shall have the meaning specified in Section 4(a).

    Officers’ Certificate“, when used with respect to the Company, shall mean a certificate signed by (a) one of the President or the ChiefExecutive Officer and (b) by one of the or the Chief Financial Officer, Treasurer or any Assistant Treasurer, Secretary or any Assistant Secretary or Controller of the Company (provided thatsuch person shall not also be the person that has signed the certificate in satisfaction of the foregoing clause (a)), which is delivered to the Transfer Agent.

    “Make-Whole Dividend Payment” shall have the meaning specified in Section 7(k).

    Non-Stock Fundamental Change” shall have the meaning specified in Section 7(l).

    Purchaser Stock Price” shall have the meaning specified in Section 7(l).

    person” shall mean a corporation, an association, a partnership, an individual, a joint venture, a joint stock company, a trust, a limited liabilitycompany, an unincorporated organization or a government or an agency or a political subdivision thereof.

    Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

    Subsidiary” means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one ormore other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, “voting stock” means stock which ordinarily has voting power for the election ofdirectors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.

    Trading Day” has the meaning specified in Section 7(l).

    Transfer Agent” means American Stock Transfer and Trust Company or such other agent or agents of the Company as may be designated by the Board ofDirectors of the Company as the transfer agent for the Preferred Stock.


Thedefinitions of certain other terms are specified in Section 7.

3.     Dividends.

(a)    Holders of the Preferred Stock are entitled to receive, when, as and if declared by the Board of Directors, out of the funds of theCompany legally available therefor, cash dividends at the annual rate of 6.5% of the Liquidation Preference, payable in quarterly installments on March 1, June 1, September 1 andDecember 1 (each a “Dividend Payment Date“), commencing June 1, 2005 (and, in the case of any accrued but unpaid dividends, at suchadditional times and for such interim periods, if any, as determined by the Board of Directors). If any Dividend Payment Date shall be on a day other than a Business Day, then the Dividend PaymentDate shall be on the next succeeding Business Day. Dividends on the Preferred Stock will be cumulative from the Issue Date, whether or not in any

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DividendPeriod or Dividend Periods there shall be funds of the Company legally available for the payment of such dividends and whether or not such dividends are declared, and will be payable toholders of record as they appear on the stock books of the Company on such record dates (each such date, a “Dividend Payment Record Date“), which shallbe not more than 60 days nor less than 10 days preceding the Dividend Payment Dates thereof, as shall be fixed by the Board of Directors. Dividends on the Preferred Stock shall accrue(whether or not declared) on a daily basis from the Issue Date, and accrued dividends for each Dividend Period shall accumulate to the extent not paid on the Dividend Payment Date first following theDividend Period for which they accrue. As used herein, the term “accrued” with respect to dividends includes both accrued and accumulated dividends.

(b)    The amount of dividends payable per share for each full Dividend Period for the Preferred Stock shall be computed by dividing theannual dividend rate by four (rounded down to the nearest one one-hundredth (1/100) of one cent). The amount of dividends payable for the initial Dividend Period on the Preferred Stock, orany other period shorter or longer than a full Dividend Period on the Preferred Stock, shall be computed on the basis of a 360-day year consisting of twelve 30-day months.Holders of shares of Preferred Stock called for redemption on a redemption date falling between the close of business on a Dividend Payment Record Date and the opening of business on the correspondingDividend Payment Date shall, in lieu of receiving such dividend on the Dividend Payment Date fixed therefor, receive such dividend payment together with all other accrued and unpaid dividends on thedate fixed for redemption (unless such holders convert such shares in accordance with Section 7 hereof). Holders of shares of Preferred Stock shall not be entitled to any dividends, whetherpayable in cash, property or stock, in excess of cumulative dividends, as herein provided. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment orpayments on the Preferred Stock which may be in arrears.

(c)    So long as any shares of Preferred Stock are outstanding, no dividends, except as described in the next succeeding sentence, shall bedeclared or paid or set apart for payment on any class or series of stock of the Company ranking, as to dividends, on a parity with the Preferred Stock, for any period unless full cumulative dividendshave been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Preferred Stock for all Dividend Periods terminating onor prior to the applicable Dividend Payment Date. When dividends are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, upon the shares of Preferred Stock and anyother class or series of stock ranking on a parity as to dividends with Preferred Stock, all dividends declared upon shares of Preferred Stock and all dividends declared upon such other stock shall bedeclared pro rata so that the amounts of dividends per share declared on the Preferred Stock and such other stock shall in all cases bear to each other the same ratio that accrued dividends per shareon the shares of Preferred Stock and on such other stock bear to each other.

(d)    So long as any shares of the Preferred Stock are outstanding, no other stock of the Company ranking on a parity with the PreferredStock as to dividends or upon liquidation, dissolution or winding up shall be redeemed, purchased or otherwise acquired for any consideration (or any monies be paid to or made available for a sinkingfund or otherwise for the purchase or redemption of any shares of any such stock) by the Company or any Subsidiary unless (i) the full cumulative dividends, if any, accrued on all outstandingshares of Preferred Stock shall have been paid or set apart for payment for all past Dividend Periods and (ii) sufficient funds shall have been set apart for the payment of the dividend for thecurrent Dividend Period with respect to the Preferred Stock.

(e)    So long as any shares of the Preferred Stock are outstanding, no dividends (other than dividends or distributions paid in shares of, oroptions, warrants or rights to subscribe for or purchase shares of, Common Stock or other stock ranking junior to the Preferred Stock, as to dividends and upon liquidation, dissolution or winding up)shall be declared or paid or set apart for payment and no other distribution shall be declared or made or set apart for payment, in each case upon the Common Stock

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orany other stock of the Company ranking junior to the Preferred Stock as to dividends or upon liquidation, dissolution or winding up, nor shall any Common Stock nor any other such stock of theCompany ranking junior to the Preferred Stock as to dividends or upon liquidation, dissolution or winding up be redeemed, purchased or otherwise acquired for any consideration (or any monies be paidto or made available for a sinking fund or otherwise for the purchase or redemption of any shares of any such stock) by the Company or any Subsidiary (except (A) by conversion into or exchangefor stock of the Company ranking junior to the Preferred Stock as to dividends and upon liquidation, dissolution or winding up; or (B) repurchases of unvested shares of the Company’s capitalstock at cost upon termination of the employment, consultancy or membership on the board of directors of the holder thereof, provided such repurchases are approved by the Board of Directors of theCompany in good faith) unless, in each case (i) the full cumulative dividends, if any, accrued on all outstanding shares of Preferred Stock and any other stock of the Company ranking on aparity with the Preferred Stock as to dividends shall have been paid or set apart for payment for all past Dividend Periods and all past dividend periods with respect to such other stock and(ii) sufficient funds shall have been set apart for the payment of the dividend for the current Dividend Period with respect to the Preferred Stock and for the current dividend period withrespect to any other stock of the Company ranking on a parity with the Preferred Stock as to dividends.

4.     Liquidation Preference.

(a)    In the event of any voluntary or involuntary dissolution, liquidation or winding up of the Company (for the purposes of thisSection 4, a “Liquidation“), before any distribution of assets shall be made to the holders of Common Stock or the holders of any other stock ofthe Company that ranks junior to the Preferred Stock upon Liquidation, the holder of each share of Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Companyavailable for distribution to its stockholders, a liquidation preference in an amount equal to $50 per share (the “Liquidation Preference“) plus alldividends accrued and unpaid on such share up to the date of distribution of the assets of the Company to the holders of Preferred Stock, and the holders of any class or series of preferred stockranking on a parity with the Preferred Stock as to Liquidation shall be entitled to receive the full respective liquidation preferences (including any premium) to which they are entitled and shallreceive all accrued and unpaid dividends with respect to their respective shares through and including the date of distribution.

(b)    If upon any Liquidation of the Company, the assets available for distribution to the holders of Preferred Stock and any other stock ofthe Company ranking on a parity with the Preferred Stock upon Liquidation which shall then be outstanding shall be insufficient to pay the holders of all outstanding shares of Preferred Stock and allother such parity stock the full amounts (including all dividends accrued and unpaid) of the liquidating distribution to which they shall be entitled, then the holders of each series of such stockwill share ratably in any such distribution of assets first in proportion to their respective liquidation preferences until such preferences are paid in full, and then in proportion to theirrespective amounts of accrued but unpaid dividends. After payment of any such liquidating preference and accrued dividends, the holders of shares of the Preferred Stock will not be entitled to anyfurther participation in any distribution of assets by the Company.

(c)    For purposes of this Section 4, a Liquidation shall not include (i) any consolidation or merger of the Company with orinto any other corporation, (ii) any liquidation, dissolution, winding up or reorganization of the Company immediately followed by reincorporation as another corporation or (iii) a saleor other disposition of all or substantially all of the Company’s assets to another corporation unless in connection therewith the Liquidation of the Company is specifically approved by all requisitecorporate action.

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(d)    The holder of any shares of Preferred Stock shall not be entitled to receive any payment owed for such shares under thisSection 4 until such holder shall cause to be delivered to the Company (i) the certificate(s) representing such shares of Preferred Stock and (ii) transfer instrument(s)satisfactory to the Company and sufficient to transfer such shares of Preferred Stock to the Company free of any adverse interest. No interest shall accrue on any payment upon Liquidation after thedue date thereof.

5.     Redemption at the Option of the Company.

(a)    Preferred Stock may not be redeemed by the Company prior to March 6, 2009, on or after which the Company, at its option, mayredeem the shares of Preferred Stock, in whole or in part, out of funds legally available therefor, at any time or from time to time, subject to the notice provisions and provisions for partialredemption described below, during the period beginning on March 1 of the years shown below (beginning on March 6, 2009 and ending on February 28, 2010, in the case of the first suchperiod), at the following redemption prices per share plus an amount equal to accrued and unpaid dividends, if any, to (but excluding) the date fixed for redemption, whether or not earned or declared:

Year


  Redemption
Price


2009   $ 51.950
2010   $ 51.625
2011   $ 51.300
2012   $ 50.975
2013   $ 50.650
2014   $ 50.325

and$50 at March 1, 2015 and thereafter; provided that, if the applicable redemption date is a Dividend Payment Date, the quarterly payment ofdividends becoming due on such date shall be payable to the holders of such shares of Preferred Stock registered as such on the relevant record date subject to the terms and provisions ofSection 3.

Nosinking fund, mandatory redemption or other similar provision shall apply to the Preferred Stock.

(b)    In case the Company shall desire to exercise the right to redeem the shares of Preferred Stock, in whole or in part, pursuant toSection 5(a), it shall fix a date for redemption, and it, or at its request (which must be received by the Transfer Agent at least ten (10) Business Days prior to the date the TransferAgent is requested to give notice as described below unless a shorter period is agreed to by the Transfer Agent), the Transfer Agent in the name of and at the expense of the Company, shall mail orcause to be mailed a notice of such redemption at least twenty (20) and not more than sixty (60) days prior to the date fixed for redemption to the holders of the shares of PreferredStock so to be redeemed at their last addresses as the same appear on the Company’s stock records (provided that if the Company shall give such notice,it shall also give such notice, and notice of the shares of Preferred Stock to be redeemed, to the Transfer Agent). Such mailing shall be by first class mail. The notice if mailed in the manner hereinprovided shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to theholder of any share of Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other share of Preferred Stock.

Eachsuch notice of redemption shall specify the number of shares of Preferred Stock to be redeemed, the date fixed for redemption, the redemption price at which such shares of Preferred Stock are tobe redeemed, the place or places of payment, that payment will be made upon presentation and surrender of the certificate or certificates representing such shares of Preferred Stock, that dividendsaccrued to (but excluding) the date fixed for redemption will be paid as specified in said notice, and that on and

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aftersaid date dividends thereon or on the portion thereof to be redeemed will cease to accrue. Such notice shall also state the current Conversion Price and the date on which the right to convertsuch shares of Preferred Stock into Common Stock will expire.

Onor prior to the redemption date specified in the notice of redemption given as provided in this Section 5(b), the Company will deposit with a bank or trust company having an office or agencyin the Borough of Manhattan, City of New York and having a combined capital and surplus of at least $50,000,000 (the “Deposit Bank“) an amount of moneysufficient to redeem on the redemption date all the shares of Preferred Stock so called for redemption (other than those theretofore surrendered for conversion into Common Stock) at the appropriateredemption price, together with accrued dividends to (but excluding) the date fixed for redemption; provided that if such payment is made on theredemption date it must be received by the Deposit Bank by 10:00 a.m. New York City time, on such date. If any shares of Preferred Stock called for redemption are converted pursuant hereto, anymoney deposited with the Deposit Bank or so segregated and held in trust for the redemption of such shares of Preferred Stock shall be paid to the Company upon its request, or, if then held by theCompany shall be discharged from such trust. The Company shall be entitled to make any deposit of funds contemplated by this Section 5 under arrangements designed to permit such funds togenerate interest or other income for the Company, and the Company shall be entitled to receive all interest and other income earned by any funds while they shall be deposited as contemplated by thisSection 5, provided that the Company shall maintain on deposit funds sufficient to satisfy all payments which the deposit arrangement shall havebeen established to satisfy. If the conditions precedent to the disbursement of any funds deposited by the Company pursuant to this Section 5 shall not have been satisfied within two yearsafter the establishment of such funds, then (i) such funds shall be returned to the Company upon its request; (ii) after such return, such funds shall be free of any trust which shallhave been impressed upon them; (iii) the person entitled to the payment for which such funds shall have been originally intended shall have the right to look only to the Company for suchpayment, subject to applicable escheat laws; and (iv) the trustee which shall have held such funds shall be relieved of any responsibility for such funds upon the return of such funds to theCompany.

Iffewer than all the outstanding shares of Preferred Stock are to be redeemed, shares to be redeemed shall be selected by the Company from outstanding shares of Preferred Stock not previously calledfor redemption by lot or pro rata based on the number of shares of Preferred Stock outstanding (as near as may be) or by any other equitable method determined by the Company in its sole discretion.

(c)    If notice of redemption has been given as above provided, on and after the date fixed for redemption (unless the Company shall defaultin the payment of the redemption price, together withaccrued and unpaid dividends to (but excluding) said date), dividends on such shares of Preferred Stock so called for redemption shall cease to accrue and such shares of Preferred Stock shall bedeemed no longer outstanding and the holders thereof shall have no right in respect of such shares of Preferred Stock except the right to receive the redemption price thereof and accrued and unpaiddividends to (but excluding) the date fixed for redemption, without interest thereon. On presentation and surrender of the certificate or certificates representing such shares of Preferred Stock at aplace of payment specified in said notice, such shares of Preferred Stock to be redeemed shall be redeemed by the Company at the applicable redemption price, together with dividends accrued thereon to(but excluding) the date fixed for redemption; provided that, if the applicable redemption date is a Dividend Payment Date, the quarterly payment ofdividends becoming due on such date shall be payable to the holders of such shares of Preferred Stock registered as such on the relevant record date subject to the terms and provisions ofSection 3.

Iffewer than all the shares of Preferred Stock represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof.

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(d)    In connection with any redemption of Preferred Stock, the Company may arrange for the purchase and conversion of any Preferred Stock byan agreement with one or more investment bankers or other purchasers to purchase such Preferred Stock by paying to the Deposit Bank in trust for the holders of Preferred Stock, on or before the datefixed for redemption, an amount not less than the applicable redemption price, together with dividends accrued to (but excluding) the date fixed for redemption, of such Preferred Stock.Notwithstanding anything to the contrary contained in this Section 5, the obligation of the Company to pay the redemption price of such Preferred Stock, together with dividends accrued to (butexcluding) the date fixed for redemption, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers. If such an agreement is entered into, a copy of whichwill be filed with the Deposit Bank prior to the date fixed for redemption, any certificate representing the Preferred Stock so converted not duly surrendered for conversion by the holders thereofmay, at the option of the Company, be deemed, to the fullest extent permitted by law, acquired by such purchasers from such holders and (notwithstanding anything to the contrary contained inSection 7) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the date fixed for redemption (and the right to convert any such PreferredStock shall be deemed to have been extended through such time), subject to payment of the above amount as aforesaid. At the direction of the Company, the Deposit Bank shall hold and dispose of anysuch amount paid to it in the same manner as it would monies deposited with it by the Company for the redemption of Preferred Stock.

6. Shares to Be Retired.    Any share of Preferred Stock converted, redeemed or otherwise acquired by the Company shall be retired andcanceled and shall upon cancellation be restored to the status of authorized but unissued shares of preferred stock, subject to reissuance by the Board of Directors as shares of preferred stock of oneor more series.

7. Conversion.    Holders of shares of Preferred Stock shall have the right to convert all or a portion of such shares (including fractions ofsuch shares) into shares of Common Stock, as follows:

(a)    Subject to and upon compliance with the provisions of this Section 7, a holder of shares of Preferred Stock shall have theright, at the holder’s option, at any time after the Issue Date (except that, with respect to shares of Preferred Stock which shall be called for redemption, such right shall terminate at the close ofbusiness on the Business Day immediately preceding the date fixed for redemption of such shares of Preferred Stock unless the Company shall default in payment due upon redemption thereof) to convertany of such shares into that number of fully paid and non-assessable shares of Common Stock (as such shares shall then be constituted) obtained by dividing $50 by the Conversion Price, asadjusted in accordance with this Section 7, by surrender of the certificate or certificates representing such share of Preferred Stock so to be converted in the manner provided inSection 7(b). As used herein, the initial “Conversion Price” shall mean the dollar amount obtained by dividing $50 by 7.2886, rounded to the nearest cent. A holder of the Preferred Stock is notentitled to any rights of a holder of Common Stock until such holder has converted his, her or its Preferred Stock to Common Stock, and only to the extent such Preferred Stock is deemed to have beenconverted to Common Stock under this Section 7.

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(b)    In order to exercise the conversion right, the holder of the Preferred Stock to be converted shall surrender the certificate orcertificates (with the Conversion Notice, the form of which is set forth in Section 14(a), on the reverse of the certificate or certificates duly completed) representing the number of shares tobe so converted, duly endorsed, at an office or agency of the Transfer Agent in the Borough of Manhattan, City of New York, and shall give written notice of conversion to the office or agency that theholder elects to convert such number of shares of Preferred Stock specified in said notice. Such notice shall also state the name or names (with address) in which the certificate or certificates forshares of Common Stock which shall be of Common Stock issuable on such conversion shall be issued, and shall be accompanied by transfer taxes, if required pursuant to Section 7(f). Each suchshare of Preferred Stock surrendered for conversion shall, unless the shares of Common Stock issuable on conversion are to be issued in the same name in which such share of Preferred Stock isregistered, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by the holder or his, her or its duly authorized attorney.

Aspromptly as practicable after satisfaction of the requirements for conversion set forth above, the Company shall issue and shall deliver to such holder or, if shares of Common Stock issuable onconversion are to be issued in a name other than that in which such share of Preferred Stock to be converted is registered (as if such transfer were a transfer of the share of Preferred Stock soconverted), to such other person, at the office or agency of the Transfer Agent in the Borough of Manhattan, City of New York, the certificate or certificates representing the number of shares ofCommon Stock issuable upon the conversion of such share of Preferred Stock or a portion thereof in accordance with the provisions of this Section 7, the payment (in appropriate form) of theMake-Whole Dividend Payment (as defined in Section 7(k)), if any, payable upon such conversion, and a check or cash in respect of any fractional interest in respect of a share ofCommon Stock arising upon such conversion, as provided in Section 7(c) (which payment, if any, shall be paid no later than five Business Days after satisfaction of the requirements forconversion set forth above).

Eachconversion pursuant to Section 7(a) shall be deemed to have been effected on the date on which the requirements set forth above in this Section 7(b) have been satisfied as to suchshare of Preferred Stock so converted, and the person in whose name any certificate or certificates for the shares of Common Stock shall be issuable upon such conversion shall be deemed to have becomeon said date the holder of record of the shares represented thereby; provided, however, that if any such surrender occurs on any date when the stocktransfer books of the Company shall be closed, the conversion shall be effected on the next succeeding day on which such stock transfer books are open, and the person in whose name the certificatesare to be issued shall be the record holder thereof for all purposes, but such conversion shall be at the Conversion Price in effect on the date upon which certificate or certificates representingsuch shares of Preferred Stock shall be surrendered. All shares of Common Stock delivered upon conversion of the Preferred Stock will, upon delivery, be duly authorized, validly issued and fully paidand nonassessable.

Inthe case of any share of Preferred Stock which is converted after any record date with respect to the payment of a dividend on the Preferred Stock and prior to the close of business on the BusinessDay prior to the next succeeding Dividend Payment Date, the dividend due on such Dividend Payment Date shall be payable on such Dividend Payment Date to the holder of record of such share as of suchpreceding record date notwithstanding such conversion; provided that shares of Preferred Stock surrendered for conversion during the period between theclose of business on any record date with respect to the payment of a dividend on the Preferred Stock and prior to the close of business on the Business Day prior to the next succeeding DividendPayment Date must (except in the case of shares of Preferred Stock which (a) have been called for redemption and a notice of redemption has been sent to the holders of Preferred Stock pursuantto Section 5(b) or (b) have been elected to be automatically converted and for which an Automatic Conversion Notice has been issued in accordance with Section 7(j)) be accompaniedby payment in funds acceptable to the Company of an amount equal to

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thedividend payable on such Dividend Payment Date on the shares of Preferred Stock being surrendered for conversion. The Transfer Agent shall not be required to accept for conversion any shares ofPreferred Stock not accompanied by any payment required by the preceding sentence. Except as provided in this paragraph or Section 7(k), no payment or adjustment shall be made upon anyconversion on account of any dividends accrued on shares of Preferred Stock surrendered for conversion or on account of any dividends on the Common Stock issued upon conversion.

(c)    In connection with the conversion of any shares of Preferred Stock (whether pursuant to Section 7(a) or Section 7(j)), aportion of such shares may be converted; however, no fractional shares of Common Stock or scrip representing fractional shares shall be issued upon conversion of the Preferred Stock. If any fractionalshare of stock otherwise would be issuable upon the conversion of the Preferred Stock, the Company shall make an adjustment therefor in cash at the current market value thereof to the holder of thePreferred Stock. The current market value of a share of Common Stock shall be the Closing Price on the first Trading Day immediately preceding the day on which the Preferred Stock (or a specifiedportion thereof) is deemed to have been converted and such Closing Price shall be determined as provided in Section 7(l). If more than one share (or fraction thereof) shall be surrendered forconversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate number of shares of PreferredStock so surrendered.

(d)    The Conversion Price shall be adjusted from time to time by the Company as follows:

    (i)    In case the Company shall hereafter pay a dividend or make a distribution to all holders of the outstanding Common Stock in shares of Common Stock, theConversion Price in effect at the opening of business on the date following the date fixed for the determination of stockholders entitled to receive such dividend or other distribution shall bereduced by multiplying such Conversion Price by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date (as defined inSection 7(l)) fixed for such determination and the denominator shall be the sum of such number of shares and the total number of shares constitutingsuch dividend or other distribution, such reduction to become effective immediately prior to the opening of business on the day following the Record Date. If any dividend or distribution of the typedescribed in this Section 7(d)(i) is declared but not so paid or made, the Conversion Price shall again be adjusted to the Conversion Price which would then be in effect if such dividendor distribution had not been declared.

    (ii)    In case the Company shall issue rights or warrants to all holders of its outstanding shares of Common Stock entitling them (for a period expiring withinforty-five (45) days after the date fixed for the determination of stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of Common Stock at aprice per share less than the Current Market Price (as defined in Section 7(l)) on the Record Date fixed for the determination of stockholders entitled to receive such rights or warrants, theConversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect at the opening of business on the date after such Record Date by afraction of which the numerator shall be the number of shares of Common Stock outstanding at the close of business on the Record Date plus the number of shares which the aggregate offering price ofthe total number of shares so offered would purchase at such Current Market Price, and of which the denominator shall be the number of shares of Common Stock outstanding on the close of business onthe Record Date plus the total number of additional shares of Common Stock so offered for subscription or purchase. Such adjustment shall become effective immediately prior to the opening of businesson the day following the Record Date fixed for determination of stockholders entitled to receive such rights or warrants. To the extent that shares of Common Stock are not delivered pursuant to suchrights or warrants, upon the expiration or termination of such rights or warrants the Conversion Price

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    shallbe readjusted to the Conversion Price which would then be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of delivery of only the number ofshares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the Conversion Price which would then be ineffect if such date fixed for the determination of stockholders entitled to receive such rights or warrants had not been fixed. In determining whether any rights or warrants entitle the holders tosubscribe for or purchase shares of Common Stock at less than the Current Market Price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken intoaccount any consideration received for such rights or warrants, the value of such consideration, if other than cash, to be determined by the Board of Directors, whose determination shall be conclusiveand described in a Board Resolution.

    (iii)    In case the outstanding shares of Common Stock shall be subdivided into a greater number of shares of Common Stock, the Conversion Price in effect at theopening of business on the day following the day upon which such subdivision becomes effective shall be proportionately reduced, and conversely, in case outstanding shares of Common Stock shall becombined into a smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business on the day following the day upon which such combination becomes effective shall beproportionately increased, such reduction or increase, as the case may be, to become effective immediately after the opening of business on the day following the day upon which such subdivision orcombination becomes effective.

    (iv)    In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock shares of any class of capital stock of the Company (otherthan any dividends or distributions to which Section 7(d)(i) applies) or evidences of its indebtedness, cash or other assets (including securities, but excluding (1) any rights orwarrants referred to in Section 7(d)(ii) or (2) dividends and distributions paid exclusively in cash (the foregoing hereinafter in this Section 7(d)(iv) called the”Securities“)), then, in each such case, the Conversion Price shall be reduced so that the same shall be equal to the price determined by multiplyingthe Conversion Price in effect immediately prior to the close of business on the Record Date with respect to such distribution by a fraction of which the numerator shall be the Current Market Price(determined as provided in Section 7(l)) on such date less the fair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a BoardResolution) on such date of the portion of the Securities so distributed applicable to one share of Common Stock and the denominator shall be such Current Market Price, such reduction to becomeeffective immediately prior to the opening of business on the day following the Record Date; provided, however, that in the event the then fair marketvalue (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price on the Record Date, in lieu of theforegoing adjustment, adequate provision shall be made so that each holder of the Preferred Stock shall have the right to receive upon conversion of the Preferred Stock (or any portion thereof) theamount of Securities such holder would have received had such holder converted such Preferred Stock (or portion thereof) immediately prior to such Record Date. In the event that such dividend ordistribution is not so paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. Ifthe Board of Directors determines the fair market value of any distribution for purposes of this Section 7(d)(iv) by reference to the actual or when issued trading market for anysecurities comprising all or part of such distribution, it must in doing so consider the prices in such market over the same period (the “ReferencePeriod“) used in computing the Current Market Price pursuant to Section 7(l) to the extent possible, unless the Board of Directors in a Board Resolution determines ingood faith that determining the fair market value during the Reference Period would not be in the best interest of the holder of the Preferred Stock.


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Forpurposes of this Section 7(d)(iv) and Sections 7(d)(i) and (ii), any dividend or distribution to which this Section 7(d)(iv) is applicable that also includesshares of Common Stock to which 7(d)(i) applies, or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 7(d)(ii) applies (or both), shall bedeemed instead to be (1) a dividend or distribution of the evidences of indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common Stock to whichSection 7(d)(i) applies or rights or warrants to which Section 7(d)(ii) applies (and any Conversion Price reduction required by this Section 7(d)(iv) withrespect to such dividend or distribution shall then be made) immediately followed by (2) a dividend or distribution of such shares of Common Stock or such rights or warrants (and any furtherConversion Price reduction required by Sections 7(d)(i) and (ii) with respect to such dividend or distribution shall then be made) except (A) the Record Date of such dividend ordistribution shall be substituted as “the date fixed for the determination of stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such determination” and”Record Date” within the meaning of Section 7(d)(i) and as “the date fixed for the determination of stockholders entitled to receive such rights or warrants”, “the Record Date fixed forthe determination of the stockholders entitled to receive such rights or warrants” and”such Record Date” within the meaning of Section 7(d)(ii), and (B) any shares of Common Stock included in such dividend or distribution shall not be deemed “outstanding at the close ofbusiness on the date fixed for such determination” within the meaning of Section 7(d)(i).

Inthe event that the Company implements a stockholders’ rights plan (a “New Rights Plan“) or amends any existing stockholders’ rights plan (as amended,an “Amended Rights Plan” and together with any New Rights Plan, a “Rights Plan“), such Rights Plan shall provide that upon conversion of the PreferredStock the holders will receive, in addition to the Common Stock issuable upon such conversion, the rights under such Rights Plan (notwithstanding the occurrence of an event causing such rights toseparate from the Common Stock at or prior to the time of conversion). Any distribution of rights or warrants pursuant to the Rights Plan complying with the requirements set forth in the immediatelypreceding sentence of this paragraph shall not constitute a distribution of rights or warrants for purposes of this Section 7(d). Rights or warrants distributed by the Company to all holders ofCommon Stock entitling the holders thereof to subscribe for or purchase shares of the Company’s capital stock (either initially or under certain circumstances), which rights or warrants, until theoccurrence of a specified event or events (“Trigger Event“): (i) are deemed to be transferred with such shares of Common Stock; (ii) arenot exercisable; and (iii) are also issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed for purposes of this Section 7(d)(iv) (andno adjustment to the Conversion Price under this Section 7(d)(iv) will be required) until the occurrence of the earliest Trigger Event. If such right or warrant is subject to subsequentevents, upon the occurrence of which such right or warrant shall become exercisable to purchase different securities, evidences of indebtedness or other assets or entitle the holder to purchase adifferent number or amount of the foregoing or to purchase any of the foregoing at a different purchase price, then the occurrence of each such event shall be deemed to be the date of issuance andrecord date with respect to a new right or warrant (and a termination or expiration of the existing right or warrant without exercise by the holder thereof). In addition, in the event of anydistribution (or deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type described in the preceding sentence) with respect thereto, that resulted in an adjustmentto the Conversion Price under this Section 7(d)(iv), (1) in the case of any such rights or warrants which shall all have been redeemed or repurchased without exercise by any holdersthereof, the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it were a cashdistribution, equal to the per share redemption or repurchase price received by a holder of Common Stock with respect to such rights or warrants (assuming such holder had retained such rights orwarrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such rights or warrants

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allof which shall have expired or been terminated without exercise, the Conversion Price shall be readjusted as if such rights and warrants had never been issued.

    (v)    In case the Company shall, by dividend or otherwise, distribute to all holders of its Common Stock cash (excluding any cash that is distributed upon a mergeror consolidation to which Section 7(e) applies or as part of a distribution referred to in Section 7(d) (iv)), then, immediately after the close of business on the Record Date withrespect to such distribution, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the close ofbusiness on such Record Date by a fraction (i) the numerator ofwhich shall be equal to the Current Market Price on the Record Date less an amount equal to the quotient of (x) the amount of such distribution and (y) the number of shares of CommonStock outstanding on the Record Date and (ii) the denominator of which shall be equal to the Current Market Price on such date, provided,however, that in the event the portion of the cash so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the CommonStock on the Record Date, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of the Preferred Stock shall have the right to receive upon conversion of shares ofPreferred Stock the amount of cash such holder would have received had such holder converted such shares immediately prior to such Record Date. In the event that such dividend or distribution is notso paid or made, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effect if such dividend or distribution had not been declared. Any cash distribution toall holders of Common Stock as to which the Company makes the election permitted by Section 7(d)(xii) and as to which the Company has complied with the requirements of such Section shallbe treated as not having been made for all purposes of this Section 7(d)(v).

    (vi)    In case a tender offer made by the Company or of any Subsidiary for all or any portion of the Common Stock shall expire and such tender offer (as amended uponthe expiration thereof) shall require the payment of consideration to stockholders (based on the acceptance (up to any maximum specified in the terms of the tender offer) of Purchased Shares (asdefined below)) then, immediately prior to the opening of business on the day after the date upon which occurred the last time tenders could have been made pursuant to such tender offer (the”Expiration Time“), the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price ineffect immediately prior to close of business on the date of the Expiration Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding (including any tenderedshares) on the Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall be the sum of (x) thefair market value (as determined by the Board of Directors, whose determination shall be conclusive and described in a Board Resolution) of the aggregate consideration payable to stockholders based onthe acceptance (up to any maximum specified in the terms of the tender offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any suchmaximum, being referred to as the “Purchased Shares“) and (y) the product of the number of shares of Common Stock outstanding (less any PurchasedShares) at the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Expiration Time, such reduction (if any) to become effective immediately prior tothe opening of business on the day following the Expiration Time. In the event that the Company is obligated to purchase shares pursuant to any such tender offer, but the Company is permanentlyprevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again be adjusted to be the Conversion Price which would then be in effectif such tender offer had not been made. If the application of this Section 7(d)(vi) to any tender offer would result in an increase in the Conversion Price, no adjustment shall be madefor such tender offer under this Section 7(d)(vi).

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    (vii)    In case of a tender or exchange offer made by a person other than the Company or any Subsidiary for an amount which increases the offeror’s ownership ofCommon Stock to more than 25% of theCommon Stock outstanding and shall involve the payment by such person of consideration per share of Common Stock having a fair market value (as determined by the Board of Directors, whosedetermination shall be conclusive, and described in a resolution of the Board of Directors) at the last time (the “Tender Expiration Time“) tenders orexchanges may be made pursuant to such tender or exchange offer (as it shall have been amended)) that exceeds the Current Market Price of the Common Stock on the Trading Day next succeeding the TenderExpiration Time, and with respect to which, as of the Tender Expiration Time, the Board of Directors is not recommending rejection of the offer, the Conversion Price shall be reduced so that the sameshall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Tender Expiration Time by a fraction of which the numerator shall be the number of shares ofCommon Stock outstanding (including any tendered or exchanged shares) on the Tender Expiration Time multiplied by the Current Market Price of the Common Stock on the Trading Day next succeeding theTender Expiration Time and the denominator shall be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration payable to stockholders based on the acceptance(up to any maximum specified in the terms of the tender or exchange offer) of all shares validly tendered or exchanged and not withdrawn as of the Tender Expiration Time (the shares deemed soaccepted, up to any such maximum, being referred to as the “Tender Purchased Shares“) and (y) the product of the number of shares of Common Stockoutstanding (less any Tender Purchased Shares) on the Tender Expiration Time and the Current Market Price of the Common Stock on the Trading Day next succeeding the Tender Expiration Time, suchreduction to become effective immediately prior to the opening of business on the day following the Tender Expiration Time. In the event that such person is obligated to purchase shares pursuant toany such tender or exchange offer, but such person is permanently prevented by applicable law from effecting any such purchases or all such purchases are rescinded, the Conversion Price shall again beadjusted to be the Conversion Price which would then be in effect if such tender or exchange offer had not been made. Notwithstanding the foregoing, the adjustment described in thisSection 7(d)(vii) shall not be made if, as of the Tender Expiration Time, the offering documents with respect to such offer disclose a plan or intention to cause the Company to engage inany consolidation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company), or successive consolidations or mergers in which the Companyor its successor or successors shall be a party or parties, or any sale, conveyance or lease (or successive sales, conveyances or leases) of all or substantially all of the property of the Company, toany other corporation (whether or not affiliated with the Company), authorized to acquire and operate the same and which shall be organized under the laws of the United States of America, any statethereof or the District of Columbia; provided, however, that each share of Preferred Stock shall remain outstanding, or unaffected or shall be convertedinto or exchanged for convertible exchangeable preferred stock of the corporation (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by thecorporation which shall have acquired or leased such property having powers, preferences and relative, participating, optional or other rights and qualifications, limitations and restrictionssubstantially similar to (but no less favorable than) a share of Preferred Stock.

    (viii)    The Company may make such reductions in the Conversion Price, in addition to those required by Sections 7(d)(i), (ii), (iii), (iv), (v), (vi), and (vii), asthe Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock(or rights to acquire stock) or from any event treated as such for income tax purposes.


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Noadjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price. All calculations under Section 7 shall be madeby the Company and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. No adjustment need be made for a change in the par value or no par value of theCommon Stock.

    (ix)    Whenever the Conversion Price is adjusted as herein provided, the Company shall promptly file with the Transfer Agent an Officers’ Certificate setting forththe Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Company shall prepare a noticeof such adjustment of the Conversion Price setting forth the adjusted Conversion Price and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of theConversion Price to each holder of the Preferred Stock at his, her or its last address appearing on the Company’s stock records, within twenty (20) days of the effective date of suchadjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

    (x)    In any case in which this Section 7(d) provides that an adjustment shall become effective immediately after a Record Date for an event, the Company maydefer until the occurrence of such event (i) issuing to the holder of any share of Preferred Stock converted after such Record Date and before the occurrence of such event the additional sharesof Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustmentand (ii) paying to such holder of Preferred Stock any amount in cash in lieu of any fraction pursuant to Section 7(c).

    (xi)    For purposes of this Section 7(d), the number of shares of Common Stock at any time outstanding shall not include shares held in the treasury of theCompany but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock. The Company will not pay any dividend or make any distribution onshares of Common Stock held in the treasury of the Company.

    (xii)    In lieu of making any adjustment to the Conversion Price pursuant to Section 7(d)(v), the Company may elect to reserve an amount of cash fordistribution to the holders of the Preferred Stock upon the conversion of the Preferred Stock so that any such holder converting Preferred Stock will receive upon such conversion, in addition to theshares of Common Stock and other items to which such holder is entitled, the full amount of cash which such holder would have received if such holder had, immediately prior to the Record Date for suchdistribution of cash, converted its Preferred Stock into Common Stock, together with any interest accrued with respect to such amount, in accordance with this Section 7(d)(xii). The Company maymake such election by providing an Officers’ Certificate to the Transfer Agent to such effect on or prior to the payment date for any such distribution and depositing with the Deposit Bank (as definedin Section 5(b)) on or prior to such date an amount of cash equal to the aggregate amount the holders of the Preferred Stock would have received if such holders had, immediately prior to theRecord Date for such distribution, converted all of the Preferred Stock into Common Stock, with irrevocable instructions and authority to the Deposit Bank that such funds be applied in the manner setforth in this Section 7(d)(xii). The Company shall instruct the Deposit Bank to invest any such funds so deposited in marketable obligations issued or fully guaranteed by the United Statesgovernment with a maturity not more than three (3) months from the date of issuance. Upon conversion of the Preferred Stock by a holder, the holder will be entitled to receive, in addition tothe Common Stock issuable upon conversion, an amount of cash equal to the amount such holder would have received if such holder had, immediately prior to the Record Date for such distribution,converted its Preferred Stock into Common Stock, along with such holder’s pro

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    ratashare, based upon the number of shares of Preferred Stock held by such holder, of any accrued interest earned as a consequence of the investment of such funds. Promptly after making an electionpursuant to this Section 7(d)(xii), the Company shall give or shall cause to be given notice to all holders of the Preferred Stock of such election, which notice shall state the amount of cashsuch holders shall be entitled to receive (excluding interest) upon conversion of the Preferred Stock as a consequence of the Company having made such election.


(e)    In the event that the Company shall be a party to any transaction (including, without limitation (a) any recapitalization orreclassification of shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination ofCommon Stock), (b) any consolidation of the Company with, or merger of the Company into, any other person, or any merger of another person into the Company (other than a merger that does notresult in a reclassification, conversion, exchange or cancellation of Common Stock), (c) any sale, transfer or lease of all or substantially all of the assets of the Company or (d) anycompulsory share exchange) pursuant to which either shares of Common Stock shall be converted into the right to receive other securities, cash or other property, or, in the case of a sale or transferof all or substantially all of the assets of the Company, the holders of Common Stock shall be entitled to receive other securities, cash or other property, then appropriate provision shall be made sothat the holder of each share of Preferred Stock then outstanding shall have the right thereafter to convert such Preferred Stock only into: (x) in the case of any such transaction that doesnot constitute a Common Stock Fundamental Change (as defined in Section 7(l)) and subject to funds being legally available for such purpose under applicable law at the time of such conversion,the kind and amount of the securities, cash or other property that would have been receivable upon such recapitalization, reclassification, consolidation, merger, sale, transfer or share exchange by aholder of the number of shares of Common Stock issuable upon conversion of such share of Preferred Stock immediately prior to such recapitalization, reclassification, consolidation, merger, sale,transfer or share exchange, after giving effect, in the case of any Non-Stock Fundamental Change (as defined inSection 7(l)), to any adjustment in the Conversion Price in accordance with Section 7(i)(i), and (y) in the case of any such transaction that constitutes a Common StockFundamental Change, common stock of the kind received by holders of Common Stock as a result of such Common Stock Fundamental Change in an amount determined in accordance with Section 7(i)(ii).The company formed by such consolidation or resulting from such merger or that acquires such assets or that acquires the Company’s shares, as the case may be, shall make provision in its certificateor articles of incorporation or other constituent document to establish such right. Such certificate or articles of incorporation or other constituent document shall provide for adjustments that, forevents subsequent to the effective date of such certificate or articles of incorporation or other constituent document, shall be as nearly equivalent as may be practicable to the relevant adjustmentsprovided for in this Section 7. The above provisions shall similarly apply to successive transactions of the type described in this Section 7(e).

(f)    The issue of stock certificates representing the shares of Common Stock on conversions of the Preferred Stock shall be made withoutcharge to the holders of such shares for any issuance tax in respect thereof imposed by the government of the United States or any political subdivision thereof or other cost incurred by the Companyin connection with such conversion and/or the issuance of such shares. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issueand delivery of stock in any name other than the name in which the shares of Preferred Stock with respect to which such shares of Common Stock are issued are registered, and the Company shall not berequired to issue or deliver any such stock certificate unless and until the person or persons requesting the issue thereof shall have paid to the Company the amount of such tax or shall haveestablished to the satisfaction of the Company that such tax has been paid.

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(g)    The Company covenants that all shares of Common Stock which may be delivered upon conversion of shares of Preferred Stock will upondelivery be duly and validly issued and fully paid and non-assessable, free of all liens and charges and not subject to any preemptive rights.

TheCompany covenants that it will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock or its issued sharesof Common Stock held in its treasury, or both, a sufficient number of shares of Common Stock for the purpose of effecting conversions of shares of Preferred Stock not theretofore converted into CommonStock. For purposes of this reservation of Common Stock, the number of shares of Common Stock which shall be deliverable upon the conversion of all outstanding shares of Preferred Stock shall becomputed as if at the time of computation all outstanding shares of Preferred stock were held by a single holder. The issuance of shares of Common Stock upon conversion of shares of Preferred Stock isauthorized in all respects.

TheCompany shall from time to time, in accordance with the laws of the State of Delaware, use its reasonable efforts to increase the authorized number of shares of Common Stock as soon aspracticable if at any time the number of shares of authorized and unissued Common Stock shall not be sufficient to permit the conversion of all the then outstanding shares of Preferred Stock.

Beforetaking any action which would cause an adjustment reducing the Conversion Price below the then par value, if any, of the shares of Common Stock issuable upon conversion of the Preferred Stock,the Company will take all corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjustedConversion Price.

TheCompany covenants that if any shares of Common Stock to be provided for the purpose of conversion of the Preferred Stock hereunder require registration with or approval of any governmentalauthority under any Federal or State law before such shares may be validly issued upon conversion, the Company will in good faith and as expeditiously as possible endeavor to secure such registrationor approval, as the case may be.

TheCompany further covenants that if at any time the Common Stock shall be listed on the Nasdaq National Market or any national securities exchange or automated quotation system the Company will, ifpermitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all CommonStock issuable upon conversion of the Preferred Stock.

(h)    In case:

    (i)    the Company shall declare a dividend (or any other distribution) on its Common Stock (that would require an adjustment in the Conversion Price pursuant toSection 7(d)); or

    (ii)    the Company shall authorize the granting to the holders of its Common Stock of rights or warrants to subscribe for or purchase any share of any class or anyother rights or warrants; or

    (iii)    of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding Common Stock, or a change in parvalue, or from par value to no par value, or from no par value to par value), or of any consolidation or merger to which the Company is a party and for which approval of any stockholders of theCompany is required, or of the sale or transfer of all or substantially all of the assets of the Company; or

    (iv)    of the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

theCompany shall cause to be filed with the Transfer Agent and to be mailed to each holder of the Preferred Stock at his, her or its address appearing on the Company’s stock records, as promptly aspossible but in any event at least fifteen days prior to the applicable date hereinafter specified, a notice

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stating(x) the date on which a record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if a record is not to be taken, the date as of which the holdersof Common Stock of record to be entitled to such dividend, distribution or rights are to be determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer,dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled toexchange their Common Stock for securities or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up. Failureto give such notice, or any defect therein, shall not affect the legality or validity of such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution, liquidationor winding-up.

(i)    Notwithstanding any other provisions in this Section 7 to the contrary, if any Fundamental Change (as defined inSection 7(l)) occurs, then the Conversion Price in effect will be adjusted immediately after such Fundamental Change as described below. In addition, in the event of a Common Stock FundamentalChange, shares of Preferred Stock shall thereafter be convertible solely into common stock of the kind received by holders of Common Stock as the result of such Common Stock Fundamental Change.

Forpurposes of calculating any adjustment to be made pursuant to this Section 7(i) in the event of a Fundamental Change, immediately after such Fundamental Change (and for such purposesa Fundamental Change shall be deemed to occur on the earlier of (a) the occurrence of such Fundamental Change and (b) the date, if any, fixed for determination of stockholders entitledto receive the cash, securities, property or other assets distributable in such Fundamental Change to holders of the Common Stock):

    (i)    in the case of a Non-Stock Fundamental Change, the Conversion Price of the Preferred Stock immediately following such Non-StockFundamental Change shall be the lower of (A) the Conversion Price in effect immediately prior to such Non-Stock Fundamental Change, but after giving effect to any other prioradjustments effected pursuant to this Section 7, and (B) the product of (1) the Applicable Price (as defined in Section 7(l)) and (2) a fraction, the numerator ofwhich is $50 and the denominator of which is (x) the amount of the redemption price for one share of Preferred Stock if the redemption date were the date of such Non-StockFundamental Change (or if the date of such Non-Stock Fundamental Change falls within the period commencing on the first date of original issuance of the Preferred Stock throughFebruary 28, 2006, the twelve-month period commencing March 1, 2006, the twelve-month period commencing March 1, 2007, or the period commencing March 1, 2008 and endingMarch 5, 2009, the product of 106.500%, 105.850%, 105.200%, or 104.550%, respectively, times $50) plus (y) any then-accrued and unpaid distributions on one share of PreferredStock; and

    (ii)    in the case of a Common Stock Fundamental Change, the Conversion Price of the Preferred Stock immediately following such Common Stock Fundamental Change shallbe the Conversion Price in effect immediately prior to such Common Stock Fundamental Change, but after giving effect to any other prior adjustments effected pursuant to this Section 7,multiplied by a fraction, the numerator of which is the Purchaser Stock Price (as defined in Section 7(l)) and the denominator of which is the Applicable Price; provided, however, that in the eventof a Common Stock Fundamental Change in which (A) 100% of the value of the consideration received by aholder of Common Stock is common stock of the successor, acquiror or other third party (and cash, if any, paid with respect to any fractional interests in such common stock resulting from such CommonStock Fundamental Change) and (B) all of the Common Stock shall have been exchanged for, converted into or acquired for, common stock of the successor, acquiror or other third party (and anycash with respect to fractional interests), the Conversion Price of the Preferred Stock immediately following such Common Stock Fundamental Change shall be the

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    ConversionPrice in effect immediately prior to such Common Stock Fundamental Change multiplied by a fraction, the numerator of which is one (1) and the denominator of which is the number ofshares of common stock of the successor, acquiror or other third party received by a holder of one share of Common Stock as a result of such Common Stock Fundamental Change.


(j)    The Company may elect to automatically convert all or any portion of the Preferred Stock (an “AutomaticConversion“) at any time if the Closing Price of the Company’s Common Stock has exceeded 150% of the Conversion Price for at least 20 Trading Days during a 30-dayTrading Day period, ending within five Trading Days prior to the date of the Automatic Conversion Notice (as defined below). If fewer than all the outstanding shares of Preferred Stock are to beconverted in connection with any Automatic Conversion, shares to be converted shall be selected by the Company from outstanding shares of Preferred Stock by lot or pro rata based on the number ofshares of Preferred Stock then outstanding (as near as may be) or by any other equitable method determined by the Company in its sole discretion. In the event that the Automatic Conversion Date (asdefined below in this Section 7(j)) occurs prior to March 1, 2009, the Company will pay the Make-Whole Dividend Payment on the Automatic Conversion Date.

    (i)    In case the Company shall desire to exercise the right to convert the shares of Preferred Stock, in whole or in part, pursuant to this Section 7(j), itshall fix a date for the Automatic Conversion (the “Automatic Conversion Date“), and it, or at its request (which must be received by the Transfer Agentat least ten (10) Business Days prior to the date the Transfer Agent is requested to give notice asdescribed below unless a shorter period is agreed to by the Transfer Agent), the Transfer Agent in the name of and at the expense of the Company, shall mail or cause to be mailed a notice of suchAutomatic Conversion (the “Automatic Conversion Notice“) at least twenty (20) and not more than thirty (30) days prior to the AutomaticConversion Date to the holders of the shares of Preferred Stock so to be converted at their last addresses as the same appear on the Company’s stock records (providedthat if the Company shall give such Automatic Conversion Notice, it shall also give such Automatic Conversion Notice, and notice of the shares of Preferred Stock to beconverted, to the Transfer Agent). Such mailing shall be by first class mail. The Automatic Conversion Notice if mailed in the manner herein provided shall be conclusively presumed to have been dulygiven, whether or not the holder receives such notice. In any case, failure to give such Automatic Conversion Notice by mail or any defect in the notice to the holder of any share of Preferred Stockdesignated for conversion shall not affect the validity of the proceedings for the conversion of any other share of Preferred Stock.

    (ii)    Each such Automatic Conversion Notice shall specify the number of shares of Preferred Stock to be converted, the Automatic Conversion Date, the amount of theMake-Whole Dividend Payment, if any, that shall be paid by the Company, the portion of such Make-Whole Dividend Payment, if any, that shall be paid in cash, the portion of suchMake-Whole Dividend Payment, if any, that shall be paid by delivery of shares of Common Stock, the place or places where the shares of Preferred Stock to be converted are to be surrenderedfor conversion and payment of the Make-Whole Dividend Payment, if any, and the Conversion Price then in effect.

    (iii)    If the Automatic Conversion Notice has been given as above provided, on and after the Automatic Conversion Date (unless the Company shall default in thepayment of the Make-Whole Dividend Payment, if any), dividends on such shares of Preferred Stock so converted shall cease to accrue and such shares of Preferred Stock shall be deemed nolonger outstanding and the holders thereof shall have no right in respect of such shares of Preferred Stock except the right to receive the shares of Common Stock issuable upon conversion of theshares of Preferred Stock so converted and the Make-Whole Dividend Payment, if any, due on such shares of Preferred Stock along with any cash in respect of any fractional shares of CommonStock arising from such conversion as provided in Section 7(c). On presentation and surrender of the certificate or

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    certificatesrepresenting such shares of Preferred Stock as specified in said Automatic Conversion Notice, the Company shall issue and shall deliver a certificate or certificates for the number offull shares of Common Stock issuable upon conversion of the shares of Preferred Stock so converted and shall pay the Make-Whole Dividend Payment, if any, due on such shares of PreferredStock along with any cash in respect of any fractional shares of Common Stock arising from such conversion as provided in Section 7(c) (which payment, if any, shall be paid no later than five(5) Business Days after the presentation and surrender of the certificate or certificates representing such shares of Preferred Stock so converted). Notwithstanding the failure to present andsurrender the certificate or certificates representing the shares of Preferred Stock as specified in the Automatic Conversion Notice, the effective date of the conversion of any shares subject to anyAutomatic Conversion that complies with this Section 7 shall be the Automatic Conversion Date.

    (iv)    Notwithstanding the other provisions of this Section 7(j), in the event that on a proposed Automatic Conversion Date on or after March 1, 2009,the Company has not paid full cumulative dividends on the Preferred Stock (or set aside a sum therefor) for all past Dividend Periods, the Company may not convert the Preferred Stock pursuant to thisSection 7(j) and any Automatic Conversion Notice previously given pursuant to this Section 7(j) shall be of no effect.

    (v)    If any of the foregoing provisions of this Section 7(j) are inconsistent with applicable law at the time of such Automatic Conversion, such law shallgovern.


(k)    Upon any conversion of the Preferred Stock (whether pursuant to Section 7(a) or 7(j)) prior to March 1, 2009, the Companyshall make a payment (the “Make-Whole Dividend Payment“) with respect to the shares of Preferred Stock so converted in an amount equal tothe full amount of cumulative dividends that would have accrued and become payable through and including March 1, 2009 pursuant to Section 3(a) on such shares of Preferred Stock, lessany dividends actually accrued and paid with respect to such shares of Preferred Stock prior to the date upon which such conversion becomes effective. The Company shall calculate the amount of theMake-Whole Dividend Payment. The Company may elect to pay the Make-Whole Dividend Payment or any portion thereof (i) in cash or, (ii) by delivering shares ofCommon Stock. In the event of an Automatic Conversion pursuant to Section 7(j) or a voluntary conversion pursuant to Section 7(a) on or following the date of an Automatic ConversionNotice (unless and until such Automatic Conversion Notice shall be deemed to have no effect), the number of shares to be delivered in the event the Company shall elect to make theMake-Whole Dividend Payment (or any portion thereof) in shares of Common Stock shall be equal to (x) the Make-Whole Dividend Payment (or any portion thereof that theCompany elects to pay in shares of Common Stock) divided by (y) 150% of the Conversion Price (as adjusted pursuant to this Section 7) in effect on the effective date of such conversion.In all other circumstances in which the Company is required to make the Make-Whole Dividend Payment and elects to make the Make-Whole Dividend Payment (or any portion thereof)in shares of Common Stock, the number of shares of Common Stock to be delivered shall be equal to the lesser of (1) (A) the Make-Whole Dividend Payment (or any portion thereof thatthe Company elects to pay in shares of Common Stock) divided by (B) 95% of the average of the Closing Price per share of Common Stock for the two consecutive Trading Days immediately precedingand including the last Trading Day prior to the effective date of such conversion; or (2) (A) the Make-Whole Dividend Payment (or any portion thereof that the Company elects to payin shares of Common Stock) divided by (B) $5.97. All shares of Common Stock which may be issued upon payment of the Make-Whole Dividend Payment (or any portion thereof) will beissued out of the Company’s authorized but unissued Common Stock and will, upon issue, be duly and validly issued and fully paid and nonassessable and free of any preemptive or similar rights.

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(l)    The following definitions shall apply to terms used in this Section 7:

    (i) “Applicable Price”    shall mean (i) in the event of a Non-Stock Fundamental Change in which the holders of Common Stock receive only cash, theamount of cash received by a holder of one share of Common Stock and (ii) in the event of any other Fundamental Change, the average of the daily Closing Price for one share of Common Stockduring the 10 Trading Days immediately prior to the record date for the determination of the holders of Common Stock entitled to receive cash, securities, property or other assets in connection withsuch Fundamental Change or, if there is no such record date, prior to the date upon which the holders of Common Stock shall have the right to receive such cash, securities, property or other assets.The Closing Price on any Trading Day may be subject to adjustment as provided in Section 7(l)(ii).

    (ii) “Closing Price”    with respect to any securities on any day shall mean the closing sale price regular way on such day or, in case no such sale takes place onsuch day, the average of the reported closing bid and asked prices, regular way, in each case on the Nasdaq National Market or New York Stock Exchange, as applicable, or, if such security is notlisted or admitted to trading on such Nasdaq National Market or New York Stock Exchange, on the principal national security exchange or quotation system on which such security is quoted or listed oradmitted to trading, or, if not quoted or listed or admitted to trading on any national securities exchange or quotation system, the average of the closing bid and asked prices of such security on theover-the-counter market on the day in question as reported by the National Quotation Bureau Incorporated, or a similar generally accepted reporting service, or if not soavailable, in such manner as furnished by any New York Stock Exchange member firm selected from time to time by the Board of Directors for that purpose, or a price determined in good faith by theBoard of Directors, whose determination shall be conclusive and described in a Board Resolution.

    (iii) “Common Stock Fundamental Change”    shall mean any Fundamental Change in which more than 50% of the value (as determined in good faith by the Board ofDirectors of the Company) of the consideration received by holders of Common Stock consists of common stock that, for the 10 Trading Days immediately prior to such Fundamental Change, has beenadmitted for listing or admitted for listing subject to notice of issuance on a national securities exchange or quoted on Nasdaq National Market, provided,however, that a Fundamental Change shall not be a Common Stock Fundamental Change unless either (i) the Company continues to exist after the occurrence of suchFundamental Change and the outstanding Preferred Stock continues to exist as outstanding Preferred Stock, or (ii) not later than the occurrence of such Fundamental Change, the outstandingPreferred Stock is converted into or exchanged for shares of convertible preferred stock, which convertible preferred stock has powers, preferences and relative, participating optional or otherrights, and qualifications, limitations and restrictions substantially similar (but no less favorable) to those of the Preferred Stock.

    (iv) “Current Market Price”    shall mean the lesser of (a) the Closing Price per share of Common Stock on the date in question and (b) the average ofthe daily Closing Prices per share of Common Stock for the ten (10) consecutive Trading Days immediately prior to the date in question; provided,however, that (1) if the “ex” date (as hereinafter defined) for any event (other than the issuance or distribution or Fundamental Change requiring such computation) thatrequires an adjustment to the Conversion Price pursuant to Section 7(d)(i), (ii), (iii), (iv), (v), (vi), or (vii) occurs during such ten (10) consecutive Trading Days, theClosing Price for each Trading Day prior to the “ex” date for such other event shall be adjusted by multiplying such Closing Price by the same fraction by which the Conversion Price is so required tobe adjusted as a result of such other event, (2) if the “ex” date for any event (other than the issuance or distribution or Fundamental Change requiring such computation) that requires anadjustment to the Conversion Price pursuant to Section 7(d)(i), (ii), (iii), (iv), (v), (vi), or (vii) occurs on or after the “ex” date

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    forthe issuance or distribution or Fundamental Change requiring such computation and prior to the day in question, the Closing Price for each Trading Day on and after the “ex” date for such otherevent shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result of such other event, and(3) if the “ex” date for the issuance, distribution or Fundamental Change requiring such computation is prior to the day in question, after taking into account any adjustment required pursuantto clause (1) or (2) of this proviso, the Closing Price for each Trading Day on or after such “ex” date shall be adjusted by adding thereto the amount of any cash and the fair marketvalue (as determined by the Board of Directors in a manner consistent with any determination of such value for purposes of Section 7(d)(iv), (vi) or (vii) whose determinationshall be conclusive and described in a Board Resolution) of the evidences of indebtedness, shares of capital stock or assets being distributed applicable to one share of Common Stock as of the closeof business on the day before such “ex” date.


Forpurposes of any computation under Sections 7(d)(vi) or (vii), the Current Market Price of the Common Stock on any date shall be deemed to be the average of the daily Closing Prices pershare of Common Stock for such day and the next two succeeding Trading Days; provided, however, that if the “ex” date for any event (other than thetender offer requiring such computation) that requires an adjustment to the Conversion Price pursuant to Section 7(d)(i), (ii), (iii), (iv), (v), (vi), or (vii) occurs on or after theExpiration Time or the Tender Expiration Time, as the case may be, for the tender or exchange offer requiring such computation and prior to the day in question, the Closing Price for each Trading Dayon and after the “ex” date for such other event shall be adjusted by multiplying such Closing Price by the reciprocal of the fraction by which the Conversion Price is so required to be adjusted as aresult of such other event. For purposes of this paragraph, the term “ex” date, (1) when used with respect to any issuance or distribution or Fundamental Change, means the first date on whichthe Common Stock trades regular way on the relevant exchange or in the relevant market from which the Closing Price was obtained without the right to receive such issuance or distribution,(2) when used with respect to any subdivision or combination of shares of Common Stock, means the first date on which the Common Stock trades regular way on such exchange or in such marketafter the time at which such subdivision or combination becomes effective, and (3) when used with respect to any tender or exchange offer means the first date on which the Common Stock tradesregular way on such exchange or in such market after the Expiration Time or Tender Expiration Time, as the case may be, of such offer. Notwithstanding the foregoing, whenever successive adjustments tothe Conversion Price are called for pursuant to Section 7(d), such adjustments shall be made to the Current Market Price as may be necessary or appropriate to effectuate the intent ofSection 7(d) and to avoid unjust or inequitable results as determined in good faith by the Board of Directors.

    (v) “fair market value”    shall mean the amount which a willing buyer would pay a willing seller in an arm’s length transaction.

    (vi) “Fundamental Change”    shall mean the occurrence of any transaction or event or series of transactions or events pursuant to which all or substantially all ofthe Common Stock shall be exchanged for, converted into, acquired for or shall constitute solely the right to receive cash, securities, property or other assets (whether by of an exchange offer,liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization or otherwise); provided, however, in the case of anysuch series of transactions or events, for purposes of adjustment of the Conversion Price, such Fundamental Change shall be deemed to have occurred when substantially all of the Common Stock shallhave been exchanged for, converted into or acquired for, or shall constitute solely the right to receive, such cash, securities, property or other assets, but the adjustment shall be based upon theconsideration that the holders of the Common Stock received in the transaction or event as a result of which more than 50% of the Common Stock shall have

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    beenexchanged for, converted into or acquired for, or shall constitute solely the right to receive, such cash, securities, property or other assets.

    (vii) “Non-Stock Fundamental Change”    shall mean any Fundamental Change other than a Common Stock Fundamental Change.

    (viii) “Purchaser Stock Price”    shall mean, with respect to any Common Stock Fundamental Change, the average of the daily Closing Price for one share of the commonstock received by holders of the Common Stock in such Common Stock Fundamental Change during the 10 Trading Days immediately prior to the date fixed for the determination of the holders of the CommonStock entitled to receive such common stock or, if there is no such date, prior to the date upon which the holders of the Common Stock shall have the right to receive such common stock.

    (ix) “Record Date”    shall mean, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock have the right toreceive any cash, securities or other property or in which the Common Stock (or other applicable security) is exchanged for or converted into any combination of cash, securities or other property, thedate fixed for determination of stockholders entitled to receive such cash, securities or other property (whether such date is fixed by the Board of Directors or by statute, contract or otherwise).

    (x) “Trading Day”    shall mean (x) if the applicable security is quoted on the Nasdaq National Market, a day on which trades may be made thereon or(y) if the applicable security is listed or admitted for trading on the New York Stock Exchange or another national security exchange, a day on which the New York Stock Exchange or anothernational security exchange is open for business or (z) if the applicable security is not so listed, admitted for trading or quoted, any day other than a Saturday or Sunday or a day on whichbanking institutions in the State of New York are authorized or obligated by law or executive order to close.


8. Ranking.    Any class or classes of stock of the Company shall be deemed to rank:

(a)    prior to the Preferred Stock, as to dividends or as to distribution of assets upon liquidation, dissolution or winding up, if theholders of such class shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to theholders of Preferred Stock.

(b)    on a parity with the Preferred Stock, as to dividends or as to distribution of assets upon liquidation, dissolution or winding up,whether or not the dividend rates, Dividend Payment Dates or redemption or liquidation prices per share thereof be different from those of the Preferred Stock, if the holders of such class of stockand the Preferred Stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in proportion to their respectiveamounts of accrued and unpaid dividends per share or liquidation prices, without preference or priority of one over the other; and

(c)    junior to the Preferred Stock, as to dividends or as to the distribution of assets upon liquidation, dissolution or winding up, if suchstock shall be Common Stock or if the holder of Preferred Stock shall be entitled to receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be,in preference or priority to the holders of shares of such stock.

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9.     Voting Rights.

(a)    The holders of the Preferred Stock will not have any voting rights except as set forth below or as otherwise from time to time requiredby law. In connection with any right to vote, each holder of the Preferred Stock will have one vote for each share of Preferred Stock held. Any shares of Preferred Stock held by the Company or anyentity controlled by the Company shall not have voting rights hereunder and shall not be counted in determining the presence of a quorum.

(b)    Whenever dividends on the Preferred Stock or on any outstanding shares of preferred stock ranking on parity as to dividends with thePreferred Stock shall be in arrears in an aggregate amount equal to at least six quarterly dividends (whether or not consecutive), (i) the number of members of the Board of Directors of theCompany shall be increased by two, effective as of the time of election of such directors as hereinafter provided and (ii) the holders of the Preferred Stock (voting separately as a class withthe holders of preferred stock ranking on parity as to dividends with the Preferred Stock on which like voting rights have been conferred and are exercisable, without regard to series) will have theexclusive right to vote for and elect such two additional directors of the Company at any meeting of stockholders of the Company at which directors are to be elected held during the period suchdividends remain in arrears. The right of the holders of the Preferred Stock to vote for such two additional directors shall terminate when all accrued and unpaid dividends on the Preferred Stock andall other affected classes or series of preferred stock ranking on parity as to dividends with the Preferred Stock have been declared and paid or set apart for payment. The holders of the PreferredStock voting as a class shall have the right to remove without cause at any time and replace any directors such holders shall have elected pursuant to this Section 9. If the office of anydirector elected by the holders of Preferred Stock voting as a class becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, the remainingdirector elected by the holders of Preferred Stock (together with any other series of preferred stock ranking on a parity with the Preferred Stock and upon which like voting rights have been conferredand are exercisable, without regard to series) voting as a class may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred. The term of office ofall directors so elected shall terminate immediately upon the termination of the right of the holders of the Preferred Stock to vote for such directors, and the number of directors of the Board ofDirectors of the Company shall immediately thereafter be reduced by two. The Board of Directors of the Company shall determine, when and if required, to which class of directors such directorsappointed by the holders of the Preferred Stock shall be appointed under the Company’s Certificate of Incorporation; provided, however, that ifapplicable, the term of such directors shall terminate earlier than the expiration of the terms provided for the applicable class or classes of directors if the right of the holders of Preferred Stockto appoint directors under this Section 9 terminates as provided herein.

Theforegoing right of the holders of the Preferred Stock with respect to the election of two directors may be exercised at any annual meeting of stockholders or at any special meeting of stockholdersheld for such purpose. If the right to elect directors shall have accrued to the holders of the Preferred Stock more than ninety (90) days preceding the date established for the next annualmeeting of stockholders, the President of the Company shall, within twenty (20) days after the delivery to the Company at its principal office of a written request for a special meeting signedby the holders of at least 10% of all outstanding shares of Preferred Stock, call a special meeting of the holders of the Preferred Stock to be held within sixty (60) days after the delivery ofsuch request for the purpose of electing such additional directors.

(c)    So long as the Preferred Stock is outstanding, the Company shall not, without the affirmative vote or consent of the holders of atleast a majority (unless a higher percentage shall then be required by applicable law) of all outstanding shares of Preferred Stock voting separately as a class with the holders of preferred stockranking on parity as to dividends with the Preferred Stock on which like voting rights have been conferred and are exercisable, without regard to series, (i) amend, alter or

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repealany provision of the Certificate of Incorporation (including, without limitation, these resolutions) or the Bylaws of the Company so as to affect adversely the relative rights, preferences,qualifications, limitations or restrictions of the Preferred Stock, or (ii) create, authorize or issue, or reclassify any authorized stock of the Company into, or increase the authorized amountof, any class or series of the Company’s capital stock ranking senior to the Preferred Stock as to dividends or as to distributions of assets upon liquidation, dissolution or winding up of theCompany, whether voluntary or involuntary, or any obligation or security convertible into shares of such a class or series. In addition, so long as the Preferred Stock is outstanding, the Companyshall not, without the affirmative vote or consent of the holders of at least a majority (unless a higher percentage shall then be required by applicable law) of all outstanding shares of PreferredStock voting separately as a class with the holders of preferred stock ranking on parity as to dividends with the Preferred Stock on which like voting rights have been conferred and are exercisable,without regard to series, enter into a share exchange pursuant to which the Preferred Stock would be exchanged for any other securities or merge or consolidate with or into any other person or permitany other person to merge or consolidate with or into the Company, unless in such case each share of Preferred Stock shall remain outstanding or unaffected or shall be converted into or exchanged forconvertible exchangeable preferred stock of the surviving entity having voting rights, preferences, limitations or special rights thereof substantially similar (but no less favorable) to a share ofPreferred Stock. A class vote on the part of the Preferred Stock shall, without limitation, specifically not be deemed to be required (except as otherwise required by law or resolution of theCompany’s Board of Directors) in connection with (a) the authorization, issuance or increase in the authorized amount of any shares of capital stock ranking junior to or on parity with thePreferred Stock both as to the payment of dividends and as to distribution of assets upon liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, when and if issued,including Common Stock; (b) the authorization, issuance or increase in the amount of any bonds, mortgages, debentures or other obligations of the Company (other than those that may be coveredby clause (ii) of the preceding sentence; or (c) the amendment, alteration or repeal of any provision of the Certificate of Incorporation (including, without limitation, theseresolutions) in order to cure any ambiguity or to correct or supplement any provision herein that may be defective or inconsistent with any other provision herein; providedsuch provisions shall not affect adversely the relative rights, preferences, qualifications, limitations or restrictions of the Preferred Stock in any material respect).

Theholders of Preferred Stock shall also be entitled to vote on certain amendments or supplements to the Indenture establishing the Debentures, for which the Preferred Stock may be exchanged, asdescribed in Section 10 hereof, and provided in Article XI of such Indenture.

10.  Exchange.

(a)    The Preferred Stock shall be exchangeable, in whole but not in part, at the option of the Company on any Dividend Payment Datebeginning March 1, 2006, for the Debentures at the rate of $50 principal amount of Debentures for each share of Preferred Stock outstanding at the time of exchange; provided that the Debentureswill be issuable in denominations of $1,000 and integral multiples thereof. If the exchange results in an amount ofDebentures that is not an integral multiple of $1,000, the amount in excess of the closest integral multiple of $1,000 will be paid in cash by the Company.

(b)    The Company will mail to each record holder of the Preferred Stock written notice of its intention to exchange the Preferred Stock forthe Debentures no less than 30 nor more than 60 days prior to the date of the exchange (the “Exchange Date“). The notice shall specify theExchange Date, the place or places where certificates for shares of the Preferred Stock are to be surrendered for Debentures and shall state that dividends on Preferred Stock will cease to accrue onand after the Exchange Date.

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(c)    If the Company has caused the Debentures to be authenticated on or prior to the Exchange Date and has complied with the otherprovisions of this Section 10, then, notwithstanding that any certificates for shares of Preferred Stock have not been surrendered for exchange, on the Exchange Date dividends shall cease toaccrue on the Preferred Stock and at the close of business on the Exchange Date the holders of the Preferred Stock shall cease to be stockholders with respect to the Preferred Stock and shall have nointerest in or other claims against the Company by virtue thereof and shall have no voting or other rights with respect to the Preferred Stock, except the right to receive the Debentures issuable uponsuch exchange and the right to accumulated and unpaid dividends, without interest thereon, upon surrender (and endorsement, if required by the Company) of their certificates, and the shares evidencedthereby shall no longer be deemed outstanding for any purpose. The Company will cause the Debentures to be authenticated on or before the Exchange Date, and the Company will pay interest on theDebentures at the rate and on the dates specified in such Indenture from and after the Exchange Date.

(d)    Notwithstanding the foregoing, if notice of exchange has been given pursuant to this Section 10 and any holder of shares ofPreferred Stock shall, prior to the close of business on the Exchange Date, give written notice to the Company pursuant to Section 7 of the conversion of any or all of the shares held by theholder (accompanied by a certificate or certificates for such shares, duly endorsed or assigned to the Company), then the exchange shall not become effective as to the shares to be converted and theconversion shall become effective as provided in Section 7.

(e)    The Debentures will be delivered to the persons entitled thereto upon surrender to the Company or its agent appointed for that purposeof the certificates for the shares of Preferred Stock being exchanged therefor.

(f)    Notwithstanding the other provisions of this Section 10, if on the Exchange Date (i) the Company has not paid fullcumulative dividends on the Preferred Stock (or set aside a sum therefor) to the Exchange Date; or (ii) the exchange shall result in an Event of Default under the Indenture or an Event ofDefault under the Indenture shall have occurred and be continuing, the Company may not exchange the Preferred Stock for the Debentures and any notice previously given pursuant to thisSection 10 shall be of no effect.

(g)    Prior to the Exchange Date, the Company will comply with any applicable securities and blue sky laws with respect to the exchange ofthe Preferred Stock for the Debentures.

(h)    Dividends with respect to the shares of Preferred Stock to be exchanged which are due on the quarterly Dividend Payment Date on whichthe exchange is effected will be mailed to holders in the regular course.

11. Record Holders.    The Company and the Transfer Agent may deem and treat the record holder of any shares of Preferred Stock as the trueand lawful owner thereof for all purposes and neither the Company nor the Transfer Agent shall be affected by any notice to the contrary.

12. Notice.    Except as may otherwise be provided for herein, all notices referred to herein shall be in writing, and all notices hereundershall be deemed to have been given upon receipt, in the case of a notice of conversion given to the Company as contemplated in Section 7(b) hereof, or, in all other cases, upon the earlier ofreceipt of such notice or three Business Days after the mailing of such notice if sent by registered mail (unless first-class mail shall be specifically permitted for such notice under the terms ofthis resolution) with postage prepaid, addressed, if to the Company, to its offices at 500 Arsenal Street, Watertown, Massachusetts 02472 (Attention: Secretary) or to an agent of the Companydesignated as permitted by this certificate, or, if to any holder of the Preferred Stock, to such holder at the address of such holder of the Preferred Stock as listed in the Company’s stock recordsor to such

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otheraddress as the Company or holder, as the case may be, shall have designated by notice similarly given.

13.  Form of Certificates; Transfer.

(a)    So long as the shares of Preferred Stock are eligible for book-entry settlement with the Depositary, or unless otherwiserequired by law, all shares of Preferred Stock that are so eligible may be represented by a Preferred Stock certificate in global form (the “GlobalCertificate“) registered in the name of the Depositary or the nominee of the Depositary, except as otherwise specified below. The transfer, conversion and exchange ofbeneficial interests in the Global Certificate shall be effected through the Depositary in accordance with this Certificate and the procedures of the Depositary therefor.

Transfersof interests in a Global Certificate will be made in accordance with the standing instructions and procedures of the Depository and its participants. The Transfer Agent shall makeappropriate endorsements to reflect increases or decreases in the Global Certificate as set forth on the face of the Global Certificate to reflect any such transfers.

Exceptas provided below, beneficial owners of an interest in a Global Certificate shall not be entitled to have certificates registered in their names, will not receive or be entitled to receivephysical delivery of certificates in definitive form and will not be considered holders of such Global Certificates.

Nodefinitive Preferred Stock certificate, or portion thereof, in respect of which the Company or an Affiliate of the Company held any beneficial interest shall be included in a Global Certificate.TheTransfer Agent shall issue Preferred Stock certificates in definitive form upon any transfer of a beneficial interest in any Global Certificate to the Company or any Affiliate of the Company.

(b)    Any Global Certificate may be endorsed with or have incorporated in the text thereof such legends or recitals or changes notinconsistent with the provisions of this Certificate as may be required by the Custodian, the Depositary, by the New York Stock Exchange or by the National Association of SecuritiesDealers, Inc. in order to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange upon which the shares of Preferred Stock maybe listed or traded or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular shares of Preferred Stock are subject.

(c)    Notwithstanding any other provisions of this Certificate (other than the provisions set forth in this Section 13(c)), a GlobalCertificate may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee to a successor Depositaryor a nominee of such successor Depositary.

TheDepositary shall be a clearing agency registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the Global Certificates.Initially, the Global Certificate shall be issued to the Depositary, registered in the name of Cede & Co., as the nominee of the Depositary, and deposited with a custodian for Cede & Co.

Ifat any time the Depositary for a Global Certificate notifies the Company that it is unwilling or unable to continue as Depositary for such Global Certificate, the Company may appoint a successorDepositary with respect to such Global Certificate. If a successor Depositary for the Preferred Stock is not appointed by the Company within 90 days after the Company receives such notice, theCompany will execute, and the Transfer Agent will authenticate and deliver, Preferred Stock in certificated form, in an aggregate principal amount equal to the principal amount of the GlobalCertificate, in exchange for such Global Certificate.

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PreferredStock in definitive form issued in exchange for all or a part of a Global Certificate pursuant to this Section 13 shall be registered in such names and in such authorizeddenominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Transfer Agent. Upon execution and authentication, the TransferAgent shall deliver such Preferred Stock in certificated form to the persons in whose names such Preferred Stock in definitive form are so registered.

Atsuch time as all interests in a Global Certificate have been redeemed, converted, exchanged, repurchased or canceled for Preferred Stock in definitive form, or transferred to a transferee whoreceives Preferred Stock in definitive form, such Global Certificate shall be, upon receipt thereof, canceled by the Transfer Agent in accordance with standing procedures and instructions existingbetween the custodian and Depositary. At any time prior to such cancellation, if any interest in a Global Certificate is exchanged for Preferred Stock in certificated form, redeemed, converted,exchanged, repurchased by the Company or canceled, or transferred for part of a Global Certificate, the principal amount of such Global Certificate shall, in accordance with the standing proceduresand instructions existing between the custodian and the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Certificate, by the Transfer Agent orthe custodian, at the direction of the Transfer Agent, to reflect such reduction or increase.

(d)    Any Preferred Stock or Common Stock issued upon the conversion or exchange of a Security that is purchased or owned by the Company orany Affiliate thereof may not be resold by the Company or such Affiliate unless registered under the Securities Act or resold pursuant to an exemption from the registration requirements of theSecurities Act in a transaction which results in such Preferred Stock or Common Stock, as the case may be, no longer being “restricted securities” (as defined under Rule 144). Any PreferredStock or Common Stock issued in definitive form to the Company or any Affiliate thereof shall be endorsed with or have incorporated in the text thereof such legends or recitals as necessary to setforth the foregoing restrictions.

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14.  Form of Notice of Conversion; Form of Assignment.

(a)    The following is the form of Conversion Notice to be set forth on the reverse of the Preferred Stock certificate:

[FORMOF CONVERSION NOTICE]
CONVERSION NOTICE

To:    


Theundersigned registered owner of the Preferred Stock hereby irrevocably exercises the right to convert the Preferred Stock, or the portion hereof below designated, into shares of Common Stock inaccordance with the terms of the Certificate of Designation, and directs that the shares issuable and deliverable upon such conversion, together with any shares issuable and deliverable or check inpayment of any Make-Whole Dividend Payment, if any, and any check in payment for fractional shares and any Preferred Stock representing any unconverted amount of shares hereof, be issuedand delivered to the registered holder hereof unless a different name has been indicated below. If shares or any portion of the Preferred Stock not converted are to be issued in the name of a personother than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto.

Dated:    


   




 

 


Signature(s)



 

 

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and ExchangeCommission Rule 17AD-15 if shares of Common Stock are to be issued, or Preferred Stock to be delivered, other than to and in the name of the registered holder.

 

 

Signature Guarantee

 

 

Fill in for registration of shares if to be issued, and Preferred Stock if to be delivered, other than to and in the name of the registered holder:

 

 


(Name)



 

 


(Street Address)



 

 


(City, State and Zip Code)
Please print name and address



 

 
    Number of shares to be
converted (if less than all):                    

Taxpayer
   
    Social Security or Other
Identification Number                    

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(b)    The following is the form of Assignment to be set forth on the reverse of the Preferred Stock certificate:

[FORMOF ASSIGNMENT]

Forvalue received                           hereby sell(s), assign(s) and transfer(s)unto                           (Please insert social security or Taxpayer Identification Number of assignee) thePreferred Stock, andhereby irrevocably constitutes and appoints                           attorney to transfer the said Preferred Stockon the books of the Company, with full power of substitution in the premises.

Unlessthe appropriate box below is checked, the undersigned confirms that such Preferred Stock is not being transferred to the Company or an “affiliate” of the Company as defined in Rule 144under the Securities Act of 1933, as amended (an “Affiliate“).

o  Thetransferee is an Affiliate of the Company

o  The transferee is the Company

Dated:    


   




 

 


Signature(s)



 

 

Signature(s) must be guaranteed by an eligible Guarantor Institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and ExchangeCommission Rule 17AD-15 if shares of Common Stock are to be issued, or Preferred Stock to be delivered, other than to and in the name of the registered holder.

 

 

Signature Guarantee

 

 

NOTICE: The signature on the conversion notice, or the assignment must correspond with the name as written upon the face of the Preferred Stock in every particular without alteration or enlargement or any change whatever.

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IN WITNESS WHEREOF, the Company has caused this certificate to be signed and attested this February 23, 2005.

    ACUSPHERE, INC.

 

 

By:

/s/  
JOHN F. THERO      


Name: John F. Thero
Title: Senior Vice President and
Chief Financial Officer

Attest:

/s/  SHERRI C. OBERG      


Name: Sherri C. Oberg
Title: President and Chief Executive Officer
 

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