<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEW ROCKWELL INTERNATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
(TO BE CHANGED TO ROCKWELL INTERNATIONAL CORPORATION)
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Delaware 25-1797617
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF IDENTIFICATION
INCORPORATION OR ORGANIZATION) NO.)
2201 Seal Beach Boulevard 90740-8250
Seal Beach, California (ZIP CODE)
(ADDRESS OF PRINCIPAL
EXECUTIVE OFFICES)
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ROCKWELL INTERNATIONAL CORPORATION SAVINGS PLAN, ROCKWELL RETIREMENT SAVINGS
PLAN FOR CERTAIN EMPLOYEES, ALLEN-BRADLEY SAVINGS AND INVESTMENT PLAN FOR
SALARIED EMPLOYEES, ALLEN-BRADLEY SAVINGS AND INVESTMENT PLAN FOR HOURLY
EMPLOYEES
AND RELIANCE ELECTRIC COMPANY SAVINGS AND INVESTMENT PLAN
(FULL TITLE OF THE PLANS)
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WILLIAM J. CALISE, JR. Esq.
Senior Vice President, General Counsel and Secretary
New Rockwell International Corporation
2201 Seal Beach Boulevard
Seal Beach, California 90740-8250
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(310) 797-5362
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
PETER R. KOLYER, Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
(212) 408-5100
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE (1) FEE
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Common Stock, par value $1 per share
(including the associated
Preferred Share Purchase Rights)
(2)............................... 5,000,000 shares $23.81 $119,050,000 $41,053
</TABLE>
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended (the
Securities Act), based on the book value as of June 30, 1996 of the assets to be
received by the Registrant in the transaction in which the shares of the
Registrant's securities registered pursuant to Registration Statement No.
333-14969 will be issued.
(2) In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described herein.
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed with the Securities and
Exchange Commission (the Commission), are incorporated herein by reference and
made a part hereof:
(a) Proxy Statement-Prospectus dated October 29, 1996, filed (Registration
No. 333-14969) by New Rockwell International Corporation (New Rockwell)
pursuant to Rule 424(b) under the Securities Act.
(b) Annual Report on Form 11-K of the Rockwell International Corporation
Savings Plan for the fiscal year ended September 30, 1995.
(c) Annual Report on Form 11-K of the Reliance Electric Company Savings and
Investment Plan for the fiscal year ended December 31, 1995.
(d) Annual Report on Form 11-K of the Allen-Bradley Savings and Investment
Plan for Salaried Employees for the fiscal year ended December 31, 1995.
(e) Annual Report on Form 11-K of the Allen-Bradley Savings and Investment
Plan for Hourly Employees for the fiscal year ended December 31, 1995.
(f) Item 1 of the Registration Statement on Form 8-A pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the Exchange
Act), filed by New Rockwell October 30, 1996.
All documents subsequently filed by New Rockwell and the Rockwell
International Corporation Savings Plan, Rockwell Retirement Savings Plan for
Certain Employees, Allen-Bradley Savings and Investment Plan for Salaried
Employees, Allen-Bradley Savings and Investment Plan for Hourly Employees and
Reliance Electric Company Savings and Investment Plan (the Plans) pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated herein by reference and be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes that
statement. Any such statement so modified or superseded shall not constitute a
part of this Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
This Item is not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
William J. Calise, Jr., Esq., who has passed upon the legality of any newly
issued Common Stock of New Rockwell covered by this Registration Statement, is
Senior Vice President, General Counsel and Secretary of New Rockwell.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits Delaware corporations to
eliminate or limit the monetary liability of directors for breach of their
fiduciary duty of care, subject to certain limitations (8 Del. G.C.L. sec.
102(b)(7) ) and also provides for indemnification of directors, officers,
employees and agents subject to certain limitations (8 Del. G.C.L. sec. 145).
Article IX of New Rockwell's Certificate of Incorporation eliminates, and
the last paragraph of Article Seventh of New Rockwell's Restated Certificate of
Incorporation to be filed with the Secretary of State of the State of Delaware
will eliminate, monetary liability of directors for breach of fiduciary duty as
directors to the extent permitted by Delaware law.
II-1
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Section 14 of Article III of the By-Laws of New Rockwell provides for the
indemnification of directors and officers of New Rockwell to the extent
permitted by Delaware law. Section 13 of Article III of the New Rockwell By-Laws
and the appendix thereto entitled Procedures for Submission and Determination of
Claims for Indemnification Pursuant to Article III, Section 13 of the By-Laws to
be adopted by New Rockwell will provide, in substance, for the indemnification
of directors, officers, employees and agents of New Rockwell to the extent
permitted by Delaware law.
New Rockwell's directors and officers are insured against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act.
In addition, New Rockwell and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which New
Rockwell or such persons may be required to make in respect thereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
This Item is not applicable.
ITEM 8. EXHIBITS.
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3-a --New Rockwell's Certificate of Incorporation, filed as Exhibit 3-a to
Registration Statement No. 333-14969, is incorporated herein by reference.
3-b --New Rockwell's By-Laws, filed as Exhibit 3-b to Registration Statement No.
333-14969, is incorporated herein by reference.
4-a --Form of Restated Certificate of Incorporation of New Rockwell to be filed
with the Secretary of State of the State of Delaware, filed as Exhibit 4-a to
Registration Statement No. 333-14969, is incorporated herein by reference.
4-b --Form of By-Laws of New Rockwell to be adopted by New Rockwell, filed as
Exhibit 4-b to Registration Statement No. 333-14969, is incorporated herein
by reference.
4-c --Rights Agreement dated as of November 30, 1996 between New Rockwell and
ChaseMellon Shareholder Services, L.L.C., as rights agent.
4-d-1 --Copy of Rockwell International Corporation Savings Plan amended and restated
as of January 1, 1995, filed as Exhibit 99-a-1 to Rockwell's Annual Report on
Form 10-K for the year ended September 30, 1995, is hereby incorporated by
reference.
4-d-2 --Copy of resolution adopted by the Board of Directors of Rockwell
International Corporation (Rockwell) on September 11, 1996 amending the
Rockwell International Corporation Savings Plan.
4-d-3 --Copy of resolution adopted by the Board of Directors of Rockwell on November
6, 1996 amending the Rockwell International Corporation Savings Plan and the
Rockwell Retirement Savings Plan for Certain Employees.
4-d-4 --Master Defined Contribution Trust Agreement effective January 1, 1996 between
The Employee Benefit Committee of Rockwell and First Interstate Bank of
California (predecessor of Wells Fargo Bank, N.A.), filed as Exhibit 99-b to
Rockwell's Quarterly Report on Form 10-Q for the quarter ended March 31,
1996, is hereby incorporated by reference.
4-e-1 --Copy of Rockwell Retirement Savings Plan for Certain Employees effective as
of January 1, 1996, filed as Exhibit 4-c to Registration Statement No.
33-64497, is hereby incorporated by reference.
4-f-1 --Copy of Allen-Bradley Savings and Investment Plan for Salaried Employees, as
amended and restated effective March 1, 1996, filed as Exhibit 4-c to
Registration Statement No. 333-00705, is hereby incorporated by reference.
4-f-2 --Copy of Allen-Bradley Savings and Investment Plan for Hourly Employees, as
amended and restated effective March 1, 1996, filed as Exhibit 4-c to
Registration Statement No. 333-00711, is hereby incorporated by reference.
</TABLE>
II-2
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4-f-3 --Copy of Trust Agreement made as of September 30, 1995 between the Savings
Plan Asset Committee of Allen-Bradley Company, Inc. and First Interstate Bank
of California, N.A. (predecessor of Wells Fargo Bank, N.A.), filed as Exhibit
4-d-1 to Registration Statement No. 333-00705, is hereby incorporated by
reference.
4-f-4 --Copy of Trust Agreement dated as of December 1, 1981 between Allen-Bradley
Company, Inc., as successor by merger to Allen-Bradley Company, and Kenneth
W. Krueger, as successor to Gene R. Stevens, Trustee, filed as Exhibit 4-d-2
to Registration Statement No. 333-00705, is hereby incorporated by reference.
4-f-5 --Succession Agreement dated March 25, 1996 among Allen-Bradley Company, Inc.,
Kenneth W. Krueger and NBD Bank, as Successor Trustee of the trust funds
under the Allen-Bradley Savings and Investment Plans, filed as Exhibit 99-a
to Rockwell's Quarterly Report on Form 10-Q for the quarter ended March 31,
1996, is hereby incorporated by reference.
4-g-1 --Copy of the Reliance Electric Company Savings and Investment Plan, as
restated effective January 1, 1989, filed as Exhibit 4-c to Registration
Statement No. 33-62917, is incorporated herein by reference.
4-g-2 --Amendment No. 1 to Reliance Electric Company Savings and Investment Plan,
effective January 1, 1989, filed as Exhibit 4-d to Registration Statement No.
33-62917, is incorporated herein by reference.
4-g-3 --Amendment No. 2 to Reliance Electric Company Savings and Investment Plan,
effective October 1, 1995, filed as Exhibit 4-e to Registration Statement No.
33-62917, is incorporated herein by reference.
4-g-4 --Form of Amendment No. 3 to Reliance Electric Company Savings and Investment
Plan.
4-g-5 --Copy of Agreement and Declaration of Trust amended and restated as of
September 2, 1983 between Reliance Electric Company and Central National Bank
of Cleveland (predecessor-in-interest to Wells Fargo Bank, N.A.), filed as
Exhibit 4-f to Registration Statement No. 33-62917, is incorporated herein by
reference.
4-h-1 --Copy of resolution adopted by the Board of Directors of Rockwell on November
6, 1996 authorizing the assignment of the Rockwell International Corporation
Savings Plan and the Rockwell Retirement Savings Plan for Certain Employees
to New Rockwell.
4-h-2 --Form of resolution proposed to be adopted by the Board of Directors of New
Rockwell assuming and adopting the Rockwell International Corporation Savings
Plan and the Rockwell Retirement Savings Plan for Certain Employees.
5-a --Opinion of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of New Rockwell, as to the legality of any newly issued
Common Stock of New Rockwell covered by this Registration Statement.
5-b --In lieu of an opinion concerning compliance with the requirements of the
Employee Retirement Income Security Act of 1974, as amended, or a
determination letter of the Internal Revenue Service (the IRS) that the Plans
are qualified under Section 401 of the Internal Revenue Code, Rockwell hereby
undertakes to submit the Plans and any amendment thereto to the IRS in a
timely manner and to make all changes required by the IRS in order to qualify
the Plans.
23-a --Consent of Deloitte & Touche LLP, independent auditors, set forth on page
II-7 of this Registration Statement.
23-b --Consent of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of New Rockwell, contained in his opinion filed as
Exhibit 5-a to this Registration Statement.
23-c --Consent of Chadbourne & Parke LLP, set forth on page II-7 of this
Registration Statement.
24 --Power of Attorney authorizing certain persons to sign this Registration
Statement and amendments hereto on behalf of certain directors and officers
of New Rockwell, filed as Exhibit 24 to Registration Statement No. 333-14969,
is incorporated herein by reference.
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<PAGE> 5
ITEM 9. UNDERTAKINGS.
A. New Rockwell hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933; (ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed with or
furnished to the Commission by New Rockwell pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of New Rockwell's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and each filing of the Plans' annual reports pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
B. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of New
Rockwell pursuant to the foregoing provisions, or otherwise, New Rockwell has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by New Rockwell
of expenses incurred or paid by a director, officer or controlling person of New
Rockwell in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, New Rockwell will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-4
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF SEAL BEACH, STATE OF CALIFORNIA ON THE 27TH DAY OF
NOVEMBER, 1996.
NEW ROCKWELL INTERNATIONAL
CORPORATION
/s/ WILLIAM J. CALISE, JR.
By
(WILLIAM J. CALISE, JR., SENIOR VICE
PRESIDENT,
GENERAL COUNSEL AND SECRETARY)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON THE 27TH DAY OF NOVEMBER, 1996 BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED:
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SIGNATURE TITLE
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DONALD R. BEALL* Chairman of the Board and Chief Executive
Officer (principal executive officer) and
Director
DON H. DAVIS, JR.* Director
W. MICHAEL BARNES* Senior Vice President, Finance & Planning and
Chief Financial Officer (principal financial
officer)
LAWRENCE J. KOMATZ* Vice President and Controller
(principal accounting officer)
/s/ WILLIAM J. CALISE,
JR.
* By
(WILLIAM J. CALISE, JR., ATTORNEY-IN-FACT)**
</TABLE>
** By authority of the power of attorney filed as Exhibit 24 to New Rockwell's
Registration Statement on Form S-4 (Registration No. 333-14969).
II-5
<PAGE> 7
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, EACH OF THE
PLANS HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY
THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF SEAL BEACH, STATE OF
CALIFORNIA ON THE 27TH DAY OF NOVEMBER, 1996.
ROCKWELL INTERNATIONAL CORPORATION
SAVINGS PLAN
/S/ ALFRED J. SPIGARELLI
By
(ALFRED J. SPIGARELLI, PLAN
ADMINISTRATOR)
ROCKWELL RETIREMENT SAVINGS PLAN FOR
CERTAIN EMPLOYEES
/S/ ALFRED J. SPIGARELLI
By
(ALFRED J. SPIGARELLI, PLAN
ADMINISTRATOR)
ALLEN-BRADLEY SAVINGS AND INVESTMENT
PLAN FOR SALARIED EMPLOYEES
/S/ ALFRED J. SPIGARELLI
By
(ALFRED J. SPIGARELLI, PLAN
ADMINISTRATOR)
ALLEN-BRADLEY SAVINGS AND INVESTMENT
PLAN FOR HOURLY EMPLOYEES
/S/ ALFRED J. SPIGARELLI
By
(ALFRED J. SPIGARELLI, PLAN
ADMINISTRATOR)
RELIANCE ELECTRIC COMPANY
SAVINGS AND INVESTMENT PLAN
/S/ ALFRED J. SPIGARELLI
By
(ALFRED J. SPIGARELLI, PLAN
ADMINISTRATOR)
II-6
<PAGE> 8
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of New Rockwell International Corporation, in respect to the Rockwell
International Corporation Savings Plan, Rockwell Retirement Savings Plan for
Certain Employees, Allen-Bradley Savings and Investment Plan for Salaried
Employees, Allen-Bradley Savings and Investment Plan for Hourly Employees and
Reliance Electric Company Savings and Investment Plan, of (i) our reports dated
July 31, 1996 on the consolidated financial statements and financial statement
schedule of Rockwell International Corporation, our report dated July 31, 1996
on the financial statements of the Aerospace and Defense Business of Rockwell
International Corporation, and our report dated September 16, 1996 on the
balance sheet of New Rockwell International Corporation, all appearing in the
Proxy Statement-Prospectus which is a part of the Registration Statement No.
333-14969 on Form S-4 of New Rockwell International Corporation; (ii) our report
dated March 1, 1996 appearing in the Annual Report on Form 11-K of the Rockwell
International Corporation Savings Plan for the year ended September 30, 1995;
(iii) our report dated June 28, 1996 appearing in the Annual Report on Form 11-K
of the Reliance Electric Company Savings and Investment Plan for the year ended
December 31, 1995; (iv) our report dated June 20, 1996 appearing in the Annual
Report on Form 11-K of the Allen-Bradley Savings and Investment Plan for
Salaried Employees for the year ended December 31, 1995; and (v) our report
dated June 20, 1996 appearing in the Annual Report on Form 11-K of the
Allen-Bradley Savings and Investment Plan for Hourly Employees for the year
ended December 31, 1995.
We also consent to the references to us under the heading "Experts" in the
Prospectuses which are part of this Registration Statement and in the Proxy
Statement-Prospectus which is part of the aforementioned Registration Statement
on Form S-4.
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
November 26, 1996
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CONSENT OF COUNSEL
The consent of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of New Rockwell, is included in his opinion filed as
Exhibit 5-a hereto.
CONSENT OF COUNSEL
We hereby consent to the reference to this firm and to the inclusion of the
summary of our opinion under the caption "Tax Consequences" in the Prospectuses
related to this Registration Statement on Form S-8 filed by New Rockwell
International Corporation in respect of the Rockwell International Corporation
Savings Plan, Rockwell Retirement Savings Plan for Certain Employees,
Allen-Bradley Savings and Investment Plan for Salaried Employees, Allen-Bradley
Savings and Investment Plan for Hourly Employees and Reliance Electric Company
Savings and Investment Plan.
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza
New York, New York 10112
November 27, 1996
II-7
<PAGE> 9
EXHIBIT INDEX
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EXHIBIT
NUMBER PAGE
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3-a --New Rockwell's Restated Certificate of Incorporation, filed as Exhibit
3-a to Registration Statement No. 333-14969, is incorporated herein by
reference.
3-b --New Rockwell's By-Laws, filed as Exhibit 3-b to Registration Statement
No. 333- 14969 , is incorporated herein by reference.
4-a --Form of Restated Certificate of Incorporation of New Rockwell to be
filed with the Secretary of State of the State of Delaware, filed as
Exhibit 4-a to Registration Statement No. 333-14969, is incorporated
herein by reference.
4-b --Form of By-Laws of New Rockwell to be adopted by New Rockwell, filed as
Exhibit 4-b to Registration Statement No. 333-14969, is incorporated
herein by reference.
4-c --Rights Agreement dated as of November 30, 1996 between New Rockwell and
ChaseMellon Shareholder Services, L.L.C., as rights agent.
4-d-1 --Copy of Rockwell International Corporation Savings Plan amended and
restated as of January 1, 1995, filed as Exhibit 99-a-1 to Rockwell's
Annual Report on Form 10-K for the year ended September 30, 1995, is
hereby incorporated by reference.
4-d-2 --Copy of resolution adopted by the Board of Directors of Rockwell
International Corporation (Rockwell) on September 11, 1996 amending the
Rockwell International Corporation Savings Plan.
4-d-3 --Copy of resolution adopted by the Board of Directors of Rockwell on
November 6, 1996 amending the Rockwell International Corporation Savings
Plan and the Rockwell Retirement Savings Plan for Certain Employees.
4-d-4 --Master Defined Contribution Trust Agreement effective January 1, 1996
between The Employee Benefit Committee of Rockwell and First Interstate
Bank of California (predecessor of Wells Fargo Bank, N.A.), filed as
Exhibit 99-b to Rockwell's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996, is hereby incorporated by reference.
4-e-1 --Copy of Rockwell Retirement Savings Plan for Certain Employees effective
as of January 1, 1996, filed as Exhibit 4-c to Registration Statement
No. 33-64497, is hereby incorporated by reference.
4-f-1 --Copy of Allen-Bradley Savings and Investment Plan for Salaried
Employees, as amended and restated effective March 1, 1996, filed as
Exhibit 4-c to Registration Statement No. 333-00705, is hereby
incorporated by reference.
4-f-2 --Copy of Allen-Bradley Savings and Investment Plan for Hourly Employees,
as amended and restated effective March 1, 1996, filed as Exhibit 4-c to
Registration Statement No. 333-00711, is hereby incorporated by
reference.
4-f-3 --Copy of Trust Agreement made as of September 30, 1995 between the
Savings Plan Asset Committee of Allen-Bradley Company, Inc. and First
Interstate Bank of California, N.A. (predecessor of Wells Fargo Bank,
N.A.), filed as Exhibit 4-d-1 to Registration Statement No. 333-00705,
is hereby incorporated by reference.
4-f-4 --Copy of Trust Agreement dated as of December 1, 1981 between
Allen-Bradley Company, Inc., as successor by merger to Allen-Bradley
Company, and Kenneth W. Krueger, as successor to Gene R. Stevens,
Trustee, filed as Exhibit 4-d-2 to Registration Statement No. 333-00705,
is hereby incorporated by reference.
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<PAGE> 10
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EXHIBIT
NUMBER PAGE
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4-f-5 --Succession Agreement dated March 25, 1996 among Allen-Bradley Company,
Inc., Kenneth W. Krueger and NBD Bank, as Successor Trustee of the trust
funds under the Allen-Bradley Savings and Investment Plans, filed as
Exhibit 99-a to Rockwell's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996, is hereby incorporated by reference.
4-g-1 --Copy of the Reliance Electric Company Savings and Investment Plan, as
restated effective January 1, 1989, filed as Exhibit 4-c to Registration
Statement No. 33-62917, is incorporated herein by reference.
4-g-2 --Amendment No. 1 to Reliance Electric Company Savings and Investment
Plan, effective January 1, 1989, filed as Exhibit 4-d to Registration
Statement No. 33-62917, is incorporated herein by reference.
4-g-3 --Amendment No. 2 to Reliance Electric Company Savings and Investment
Plan, effective October 1, 1995, filed as Exhibit 4-e to Registration
Statement No. 33-62917, is incorporated herein by reference.
4-g-4 --Form of Amendment No. 3 to Reliance Electric Company Savings and
Investment Plan.
4-g-5 --Copy of Agreement and Declaration of Trust amended and restated as of
September 2, 1983 between Reliance Electric Company and Central National
Bank of Cleveland (predecessor-in-interest to Wells Fargo Bank, N.A.),
filed as Exhibit 4-f to Registration Statement No. 33-62917, is
incorporated herein by reference.
4-h-1 --Copy of resolution adopted by the Board of Directors of Rockwell on
November 6, 1996 authorizing the assignment of the Rockwell
International Corporation Savings Plan and the Rockwell Retirement
Savings Plan for Certain Employees to New Rockwell.
4-h-2 --Form of resolution proposed to be adopted by the Board of Directors of
New Rockwell assuming and adopting the Rockwell International
Corporation Savings Plan and the Rockwell Retirement Savings Plan for
Certain Employees.
5-a --Opinion of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of New Rockwell, as to the legality of any newly
issued Common Stock of New Rockwell covered by this Registration
Statement.
5-b --In lieu of an opinion concerning compliance with the requirements of the
Employee Retirement Income Security Act of 1974, as amended, or a
determination letter of the Internal Revenue Service (the IRS) that the
Plans are qualified under Section 401 of the Internal Revenue Code,
Rockwell hereby undertakes to submit the Plans and any amendment thereto
to the IRS in a timely manner and to make all changes required by the
IRS in order to qualify the Plans.
23-a --Consent of Deloitte & Touche LLP, independent auditors, set forth on
page II-7 of this Registration Statement.
23-b --Consent of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of New Rockwell, contained in his opinion filed as
Exhibit 5-a to this Registration Statement.
</TABLE>
<PAGE> 11
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EXHIBIT
NUMBER PAGE
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23-c --Consent of Chadbourne & Parke LLP, set forth on page II-7 of this
Registration Statement.
24 --Power of Attorney authorizing certain persons to sign this Registration
Statement and amendments hereto on behalf of certain directors and
officers of New Rockwell, filed as Exhibit 24 to Registration Statement
No. 333-14969, is incorporated herein by reference.
</TABLE>
<PAGE> 1
EXHIBIT 4-c
_______________________________________________________________________________
NEW ROCKWELL INTERNATIONAL CORPORATION
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., as
Rights Agent
Rights Agreement
Dated as of November 30, 1996
_______________________________________________________________________________
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TABLE OF CONTENTS
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Section 1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Appointment of Rights Agent . . . . . . . . . . . . . . . . . . . . 7
Section 3. Issue of Right Certificates . . . . . . . . . . . . . . . . . . . . 7
Section 4. Form of Right Certificates . . . . . . . . . . . . . . . . . . . . . 9
Section 5. Countersignature and Registration . . . . . . . . . . . . . . . . . 10
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates . . . . . . . . . . . . . . . . . . . . . 11
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . . . . . . . . . . . . . . 13
Section 8. Cancellation and Destruction of
Right Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9. Availability of Preferred Shares . . . . . . . . . . . . . . . . . . 15
Section 10. Preferred Shares Record Date . . . . . . . . . . . . . . . . . . . . 16
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights . . . . . . . . . . . . . . . . . . . . . 17
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . . . . . . . . . . . . . . 31
Section 14. Fractional Rights and Fractional Shares . . . . . . . . . . . . . . 33
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 16. Agreement of Right Holders . . . . . . . . . . . . . . . . . . . . . 37
Section 17. Right Certificate Holder Not Deemed a
Shareowner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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Section 18. Concerning the Rights Agent . . . . . . . . . . . . . . . . . . . . 38
Section 19. Merger or Consolidation or Change of
Name of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . 40
Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . 44
Section 22. Issuance of New Right Certificates . . . . . . . . . . . . . . . . . 46
Section 23. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 25. Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . 50
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 27. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . 53
Section 28. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 29. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . 54
Section 30. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 31. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 33. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . 55
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Exhibit A - Form of Right Certificate
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RIGHTS AGREEMENT
Agreement, dated as of November 30, 1996, between New Rockwell
International Corporation, a Delaware corporation which, following the Spin-Off
(as defined herein), will be renamed Rockwell International Corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C. (the "Rights Agent").
The Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a "Right") for each
Common Share (as hereinafter defined) of the Company to be issued in the
distribution of Common Shares (the "Spin-Off") by Rockwell International
Corporation, a Delaware corporation, to its shareowners, each Right
representing the right to purchase one one-hundredth of a Preferred Share (as
hereinafter defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of one Right with
respect to each Common Share that shall become outstanding between the
effective date of the Spin-Off (the "Record Date") and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date (as such
terms are hereinafter defined).
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
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Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and Associates
(as such terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as such term is hereinafter defined) of 20% or more of the Common Shares
of the Company then outstanding, but shall not include the Company, any
Subsidiary (as such term is hereinafter defined) of the Company, any employee
benefit plan of the Company or any Subsidiary of the Company, or any entity
holding Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person" as
the result of an acquisition of Common Shares by the Company which, by reducing
the number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 20% or more of the Common Shares of the
Company then outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares of the Company then
outstanding by reason of share purchases by the Company and shall, after such
share purchases by the Company, become the Beneficial Owner of any additional
Common Shares of the Company, then such Person shall be deemed to be an
"Acquiring Person". Notwithstanding the foregoing, if the Board of Directors
of the Company determines in good faith that a Person who would otherwise be an
"Acquiring Person", as defined pursuant
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to the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a sufficient
number of Common Shares so that such Person would no longer be an "Acquiring
Person", as defined pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed to be an "Acquiring Person" for any
purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates
or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion
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rights, exchange rights, rights (other than the Rights), warrants or
options, or otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender or exchange offer made by or on behalf
of such Person or any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or exchange; or (B)
the right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to such Person
in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then reportable
on Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to Section
1(c)(ii)(B)) or
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disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding", when used with
reference to a Person's Beneficial Ownership of securities of the Company,
shall mean the number of such securities then issued and outstanding together
with the number of such securities not then actually issued and outstanding
which such Person would be deemed to own beneficially hereunder.
(d) "Business Day" shall mean any day other than a Saturday,
a Sunday, or a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
(e) "Class A Common Stock" shall mean the Class A Common
Stock, par value $1 per share, of the Company.
(f) "Close of business" on any given date shall mean 5:00
P.M., New York City time, on such date; provided, however, that if such date
is not a Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
(g) "Common Shares" when used with reference to the Company
shall mean the shares of Common Stock (as such term is hereinafter defined)
and, until all of the issued and outstanding shares of Class A Common Stock are
converted into Common Stock, the shares of Class A Common Stock. "Common
Shares" when used with reference to any Person other than the Company shall
mean the
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capital stock (or equity interest) with the greatest voting power of such other
Person or, if such other Person is a Subsidiary of another Person, the Person
or Persons which ultimately control such first-mentioned Person.
(h) "Common Stock" shall mean the Common Stock, par value
$1 per share, of the Company.
(i) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(j) "Final Expiration Date" shall have the meaning set forth
in Section 7 hereof.
(k) "Person" shall mean any individual, firm, corporation or
other entity, and shall include any successor (by merger or otherwise) of such
entity.
(l) "Preferred Shares" shall mean shares of Series A Junior
Participating Preferred Stock, without par value, of the Company having the
rights and preferences set forth in the Certificate of Incorporation of the
Company.
(m) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(n) "Shares Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
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(o) "Subsidiary" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of
the Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Shares) in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-Rights Agents
as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Shares Acquisition Date or (ii) the
tenth Business Day (or such later date as may be determined by action of the
Board of Directors prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity holding Common Shares
for or pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or pursuant
to the terms of any such
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plan) to commence, a tender or exchange offer the consummation of which would
result in any Person becoming the Beneficial Owner of Common Shares aggregating
20% or more of the then outstanding Common Shares (the earlier of such dates
being herein referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Section 3(c) hereof) by the
certificates for Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right Certificates
will be transferable only in connection with the transfer of Common Shares. As
soon as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign, and the Company will send or cause
to be sent (and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common Shares as of the
close of business on the Distribution Date, at the address of such holder shown
on the records of the Company, a Right Certificate, in substantially the form
of Exhibit A hereto (a "Right Certificate"), evidencing one Right for each
Common Share so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) Until the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date, certificates for Common Shares
shall have impressed on, printed on, written on or otherwise affixed to them
the following legend:
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This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between Rockwell
International Corporation (formerly New Rockwell International
Corporation) and ChaseMellon Shareholder Services, L.L.C., dated as of
November 30, 1996 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on file
at the principal executive offices of Rockwell International
Corporation. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Rockwell
International Corporation will mail to the holder of this certificate
a copy of the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances, as set forth
in the Rights Agreement, Rights issued to any Person who becomes an
Acquiring Person (as defined in the Rights Agreement) may become null
and void.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Common Shares which
are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preferred Shares and of
assignment to be printed on the reverse thereof) shall be substantially the
same as Exhibit A hereto and may have
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such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-hundredths of a Preferred
Share as shall be set forth therein at the price per one one-hundredth of a
Preferred Share set forth therein (the "Purchase Price"), but the number of
such one one-hundredths of a Preferred Share and the Purchase Price shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its Chairman of the
Board, its President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto the Company's
seal or a facsimile thereof, and shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile signature.
The Right Certificates shall be manually countersigned by the Rights Agent and
shall not be valid for any purpose unless countersigned. In case any officer
of the Company who shall have signed any of the Right Certificates shall cease
to be such officer of the Company before countersignature by the Rights Agent
and issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent and issued and delivered
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by the Company with the same force and effect as though the person who signed
such Right Certificates had not ceased to be such officer of the Company; and
any Right Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Right Certificate, shall be a
proper officer of the Company to sign such Right Certificate, although at the
date of the execution of this Rights Agreement any such person was not such an
officer.
Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right Certificates and the date
of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
Subject to the provisions of Section 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of business on
the earlier of the Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii) hereof
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or that have been exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like number of one
one-hundredths of a Preferred Share as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any Right
Certificate or Right Certificates shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged at the
principal office of the Rights Agent. Thereupon the Rights Agent shall
countersign and deliver to the person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer, split up, combination or
exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a Right Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them, and, at the Company's
request, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company will make and
deliver a new Right Certificate of like tenor to the
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Rights Agent for delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein) in
whole or in part at any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal office of the
Rights Agent, together with payment of the Purchase Price for each one
one-hundredth of a Preferred Share as to which the Rights are exercised, at or
prior to the earliest of (i) the close of business on the tenth anniversary of
the Record Date (the "Final Expiration Date"), (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the "Redemption Date"),
or (iii) the time at which such Rights are exchanged as provided in Section 24
hereof.
(b) The Purchase Price for each one one-hundredth of a
Preferred Share purchasable pursuant to the exercise of a Right shall initially
be $250, and shall be subject to adjustment from time to time as provided in
Section 11 or 13 hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the
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shares to be purchased and an amount equal to any applicable transfer tax
required to be paid by the holder of such Right Certificate in accordance with
Section 9 hereof by certified check, cashier's check or money order payable to
the order of the Company, the Rights Agent shall thereupon promptly (i) (A)
requisition from any transfer agent of the Preferred Shares certificates for
the number of Preferred Shares to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests, or
(B) requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Preferred Share as are to be purchased (in
which case certificates for the Preferred Shares represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company hereby directs the depositary agent to comply with such request, (ii)
when appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such cash to or upon
the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to
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the Rights remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly authorized assigns,
subject to the provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to the
Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form, or, if surrendered to the Rights Agent,
shall be cancelled by it, and no Right Certificates shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this Rights
Agreement. The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled Right
Certificates to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Availability of Preferred Shares. The Company
covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued Preferred Shares or any Preferred Shares held in
its treasury, the number of Preferred Shares that will be sufficient to permit
the exercise in
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full of all outstanding Rights in accordance with Section 7. The Company
covenants and agrees that it will take all such action as may be necessary to
ensure that all Preferred Shares delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such Preferred Shares (subject to
payment of the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares.
The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right Certificates
or of any Preferred Shares upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a person other than, or the
issuance or delivery of certificates or depositary receipts for the Preferred
Shares in a name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Preferred Shares upon the
exercise of any Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's reasonable
satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each person in
whose name any certificate for Preferred Shares is issued upon
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the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Preferred Shares represented thereby on, and such
certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and any applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Shares
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Shares transfer
books of the Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled to any rights
of a holder of Preferred Shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled
to receive any notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights. The Purchase Price, the number of Preferred Shares covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the Record Date (A) declare a dividend on the Preferred
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Shares payable in Preferred Shares, (B) subdivide the outstanding Preferred
Shares, (C) combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such reclassification
in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this
Section 11(a), the Purchase Price in effect at the time of the record date for
such dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock issuable
on such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the aggregate number and
kind of shares of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Shares transfer
books of the Company were open, he would have owned upon such exercise and
been entitled to receive by virtue of such dividend, subdivision, combination
or reclassification; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right.
(ii) Subject to Section 24 of this Agreement, in the event
any Person becomes an Acquiring Person, each holder of a Right shall thereafter
have a right to receive, upon exercise thereof at a price equal to the then
current Purchase Price
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multiplied by the number of one one-hundredths of a Preferred Share for which a
Right is then exercisable, in accordance with the terms of this Agreement and
in lieu of Preferred Shares, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the then current
Purchase Price by the number of one one-hundredths of a Preferred Share for
which a Right is then exercisable and dividing that product by (y) 50% of the
then current per share market price of the Company's Common Stock (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of such event.
In the event that any Person shall become an Acquiring Person and the Rights
shall then be outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the Rights.
From and after the occurrence of such event, any Rights that
are or were acquired or beneficially owned by any Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) shall be void and any holder
of such Rights shall thereafter have no right to exercise such Rights under any
provision of this Agreement. No Right Certificate shall be issued pursuant to
Section 3 that represents Rights beneficially owned by an Acquiring Person
whose Rights would be void pursuant to the preceding sentence or any Associate
or Affiliate thereof; no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person whose Rights would be void
pursuant to the preceding sentence or any Associate or Affiliate thereof or
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to any nominee of such Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring Person
whose Rights would be void pursuant to the preceding sentence shall be
cancelled.
(iii) In the event that there shall not be sufficient
shares of Common Stock issued but not outstanding or authorized but unissued to
permit the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii), the Company shall take all such action as may be necessary
to authorize additional shares of Common Stock for issuance upon exercise of
the Rights. In the event the Company shall, after good faith effort, be unable
to take all such action as may be necessary to authorize such additional
shares of Common Stock, the Company shall substitute, for each share of Common
Stock that would otherwise be issuable upon exercise of a Right, a number of
Preferred Shares or fraction thereof such that the current per share market
price of one Preferred Share multiplied by such number or fraction is equal to
the current per share market price of one share of Common Stock as of the date
of issuance of such Preferred Shares or fraction thereof.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred Shares
entitling them (for a period expiring within 45 calendar days after such record
date) to subscribe for or purchase Preferred Shares (or shares having the same
rights, privileges and
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<PAGE> 24
preferences as the Preferred Shares ("equivalent preferred shares")) or
securities convertible into Preferred Shares or equivalent preferred shares at
a price per Preferred Share or equivalent preferred share (or having a
conversion price per share, if a security convertible into Preferred Shares or
equivalent preferred shares) less than the then current per share market price
of the Preferred Shares (as defined in Section 11(d)) on such record date, the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of Preferred Shares which the
aggregate offering price of the total number of Preferred Shares and/or
equivalent preferred shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price and the denominator of which shall be the number
of Preferred Shares outstanding on such record date plus the number of
additional Preferred Shares and/or equivalent preferred shares to be offered
for subscription or purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable upon
exercise of one Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other
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<PAGE> 25
than cash, the value of such consideration shall be as determined in good faith
by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent. Preferred Shares owned
by or held for the account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event that such
rights, options or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preferred Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price to be
in effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a fraction,
the numerator of which shall be the then current per share market price of the
Preferred Shares on such record date, less the fair market value (as determined
in good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent) of the portion
of the assets or evidences of indebtedness so to be
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<PAGE> 26
distributed or of such subscription rights or warrants applicable to one
Preferred Share and the denominator of which shall be such current per share
market price of the Preferred Shares; provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company to be issued
upon exercise of one Right. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such distribution
is not so made, the Purchase Price shall again be adjusted to be the Purchase
Price which would then be in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security" for the purpose
of this Section 11(d)(i)) on any date shall be deemed to be the average of the
daily closing prices per share of such Security for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share market price of
the Security is determined during a period following the announcement by the
issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into such shares,
or (B) any subdivision, combination or reclassification of such Security and
prior to the expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, then, and in each such case, the
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<PAGE> 27
current per share market price shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security; and provided,
further, that in the event that the current per share market price of the
shares of Common Stock is determined as of a date prior to the expiration of 30
Trading Days following the Record Date, the current per share market price of
the Common Stock shall be deemed to be the average of the daily closing prices
per share of Common Stock for the period of Trading Days commencing with the
Record Date and ending immediately prior to such date. The closing price for
each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Security is not listed or
admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Security is
listed or admitted to trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or such other system then
in use, or, if on any such date the Security is not quoted by any such
organization, the average of the closing
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<PAGE> 28
bid and asked prices as furnished by a professional market maker making a
market in the Security selected by the Board of Directors of the Company. The
term "Trading Day" shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i). If the Preferred
Shares are not publicly traded, the "current per share market price" of the
Preferred Shares shall be conclusively deemed to be the current per share
market price of the Common Stock as determined pursuant to Section 11(d)(i)
(appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof), multiplied by one hundred. If
neither the shares of Common Stock nor the Preferred Shares are publicly held
or so listed or traded, "current per share market price" shall mean the fair
value per share as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Purchase Price; provided, however,
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<PAGE> 29
that any adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one one-millionth of a Preferred Share or one
ten-thousandth of any other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i)
three years from the date of the transaction which requires such adjustment or
(ii) the date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section
11(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than
Preferred Shares, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Shares contained in Section 11(a) through (c),
inclusive, and the provisions of Sections 7, 9, 10 and 13 with respect to the
Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase
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<PAGE> 30
Price, the number of one one-hundredths of a Preferred Share purchasable from
time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of
one one-hundredths of a Preferred Share (calculated to the nearest one
one-millionth of a Preferred Share) obtained by (i) multiplying (x) the number
of one one-hundredths of a share covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
substitution for any adjustment in the number of one one-hundredths of a
Preferred Share purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall be exercisable
for the number of one one-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one ten-thousandth) obtained by
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<PAGE> 31
dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is adjusted or any
day thereafter, but, if the Right Certificates have been issued, shall be at
least 10 days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
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<PAGE> 32
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a Preferred Share issuable upon
the exercise of the Rights, the Right Certificates theretofore and thereafter
issued may continue to express the Purchase Price and the number of one
one-hundredths of a Preferred Share which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-hundredth of the then par value, if
any, of the Preferred Shares issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid
and nonassessable Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such record date
of the Preferred Shares and other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the Preferred Shares and
other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a due bill or
other appropriate instrument
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<PAGE> 33
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that it in its sole discretion shall determine
to be advisable in order that any consolidation or subdivision of the
Preferred Shares, issuance wholly for cash of any Preferred Shares at less than
the current market price, issuance wholly for cash of Preferred Shares or
securities which by their terms are convertible into or exchangeable for
Preferred Shares, dividends on Preferred Shares payable in Preferred Shares or
issuance of rights, options or warrants referred to hereinabove in Section
11(b), hereafter made by the Company to holders of its Preferred Shares shall
not be taxable to such shareowners.
(n) In the event that at any time after the Record Date and
prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
into a greater or lesser number of Common Shares, then in any such case (A) the
number of one one-hundredths of a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by
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<PAGE> 34
multiplying the number of one one-hundredths of a Preferred Share so
purchasable immediately prior to such event by a fraction, the numerator of
which is the number of Common Shares outstanding immediately before such event
and the denominator of which is the number of Common Shares outstanding
immediately after such event, and (B) each Common Share outstanding immediately
after such event shall have issued with respect to it that number of Rights
which each Common Share outstanding immediately prior to such event had issued
with respect to it. The adjustments provided for in this Section 11(n) shall
be made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Section 11 or 13
hereof, the Company shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent for the Common
Shares or the Preferred Shares a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate in accordance with
Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event, directly or indirectly, at any time
after a Person has become an Acquiring Person, (a) the Company shall
consolidate with, or merge with and into, any other
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<PAGE> 35
Person, (b) any Person shall consolidate with the Company, or merge with and
into the Company and the Company shall be the continuing or surviving
corporation of such merger and, in connection with such merger, all or part of
the Common Shares shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any other property,
or (c) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or more transactions,
assets or earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any other Person
other than the Company or one or more of its wholly-owned Subsidiaries, then,
and in each such case, proper provision shall be made so that (i) each holder
of a Right (except as otherwise provided herein) shall thereafter have the
right to receive, upon the exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable, in accordance with the
terms of this Agreement and in lieu of Preferred Shares, such number of Common
Shares of such other Person (including the Company as successor thereto or as
the surviving corporation) as shall equal the result obtained by (A)
multiplying the then current Purchase Price by the number of one one-hundredths
of a Preferred Share for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price of the Common
Shares of such other Person (determined pursuant to Section 11(d) hereof) on
the date of
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<PAGE> 36
consummation of such consolidation, merger, sale or transfer; (ii) the issuer
of such Common Shares shall thereafter be liable for, and shall assume, by
virtue of such consolidation, merger, sale or transfer, all the obligations
and duties of the Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer; and (iv) such issuer shall
take such steps (including, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with Section 9 hereof) in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
the Common Shares thereafter deliverable upon the exercise of the Rights. The
Company shall not consummate any such consolidation, merger, sale or transfer
unless prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing. The
Company shall not enter into any transaction of the kind referred to in this
Section 13 if at the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or arrangements which,
as a result of the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by the Rights. The
provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares. (a)
The Company shall not be required to issue fractions of Rights
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<PAGE> 37
or to distribute Right Certificates which evidence fractional Rights. In lieu
of such fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading or,
if the Rights are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices in the over-the-counter market, as reported by NASDAQ
or such other system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market
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<PAGE> 38
in the Rights selected by the Board of Directors of the Company. If on any
such date no such market maker is making a market in the Rights, the fair value
of the Rights on such date as determined in good faith by the Board of
Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than fractions which are integral multiples of one
one-hundredth of a Preferred Share) upon exercise of the Rights or to
distribute certificates which evidence fractional Preferred Shares (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share). Fractions of Preferred Shares in integral multiples of one
one-hundredth of a Preferred Share may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it; provided, that such agreement
shall provide that the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as beneficial
owners of the Preferred Shares represented by such depositary receipts. In
lieu of fractional Preferred Shares that are not integral multiples of one
one-hundredth of a Preferred Share, the Company shall pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one Preferred Share. For the purposes of this Section 14(b), the
current market value of a Preferred Share shall be the closing price of a
Preferred Share (as determined pursuant to the second
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<PAGE> 39
sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any fractional
shares upon exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given to the Rights
Agent under Section 18 hereof, are vested in the respective registered holders
of the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares), without
the consent of the Rights Agent or of the holder of any other Right Certificate
(or, prior to the Distribution Date, of the Common Shares), may, in his own
behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against
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actual or threatened violations of the obligations of any Person subject to,
this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution Date,
the associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Shareowner.
No holder, as such, of any Right Certificate shall be
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entitled to vote, receive dividends or be deemed for any purpose the holder of
the Preferred Shares or any other securities of the Company which may at any
time be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the rights of a
shareowner of the Company or any right to vote for the election of directors or
upon any matter submitted to shareowners at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting shareowners (except as provided in Section 25 hereof),
or to receive dividends or subscription rights, or otherwise, until the Right
or Rights evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees
to pay to the Rights Agent reasonable compensation for all services rendered by
it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses
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of defending against any claim of liability in the premises.
The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in reliance upon any
Right Certificate or certificate for the Preferred Shares or Common Shares or
for other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons, or otherwise upon the advice of
counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or corporate trust powers of the Rights Agent
or any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto; provided, that such corporation would
be eligible for appointment as a successor Rights Agent under the provisions of
Section 21
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hereof. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor
Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all such
cases such Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the
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Company and the holders of Right Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman of
the Board, the President, any Vice President, the Treasurer or the Secretary of
the Company and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the Company
and any other Person only for its own negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in
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<PAGE> 45
this Agreement or in the Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right Certificate;
nor shall it be responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section 11(a)(ii) hereof) or
any adjustment in the terms of the Rights (including the manner, method or
amount thereof) provided for in Section 3, 11, 13, 23 or 24, or the
ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights evidenced by Right
Certificates after actual notice that such change or adjustment is required);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Preferred Shares to be
issued pursuant to this Agreement or any Right Certificate or as to whether any
Preferred Shares will, when issued, be validly authorized and issued, fully
paid and nonassessable.
-42-
<PAGE> 46
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or performing
by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder
from any one of the Chairman of the Board, the President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting for
those instructions.
(h) The Rights Agent and any shareowner, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the
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<PAGE> 47
rights or powers hereby vested in it or perform any duty hereunder either
itself or by or through its attorneys or agents, and the Rights Agent shall not
be answerable or accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, provided reasonable care was exercised in
the selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares or Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Shares or
Preferred Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make
such appointment within a period of 30 days after giving notice of such removal
or after it has been notified in writing of such resignation or incapacity by
the resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right Certificate for
inspection by the
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<PAGE> 48
Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation, or an affiliate of such a corporation, organized and
doing business under the laws of the United States or of the State of New York
(or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of New York),
in good standing, having an office in the State of New York, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment the Company shall file
notice thereof in writing with the predecessor Rights Agent and each transfer
agent of the Common Shares or Preferred Shares, and mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
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<PAGE> 49
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and the number or kind
or class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to such time as any Person
becomes an Acquiring Person, redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). The redemption of the Rights by the
Board of Directors may be made effective at such time, on such basis and with
such conditions as the Board of Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights
-46-
<PAGE> 50
pursuant to paragraph (a) of this Section 23, and without any further action
and without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. The Company shall promptly give public notice of any such
redemption; provided, however, that the failure to give, or any defect in, any
such notice shall not affect the validity of such redemption. Within 10 days
after such action of the Board of Directors ordering the redemption of the
Rights, the Company shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. Any notice which
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made. Neither the
Company nor any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other than that
specifically set forth in this Section 23 or in Section 24 hereof, and other
than in connection with the purchase of Common Shares prior to the Distribution
Date.
Section 24. Exchange. (a) The Board of Directors of the
Company may, at its option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights
-47-
<PAGE> 51
that have become void pursuant to the provisions of Section 11(a)(ii) hereof)
for shares of Common Stock at an exchange ratio of one share of Common Stock
per Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after the Record Date if any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the
Company or any such Subsidiary, or any entity holding Common Shares for or
pursuant to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of the
Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to paragraph (a) of
this Section 24 and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right thereafter of
a holder of such Rights shall be to receive that number of shares of Common
Stock equal to the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice of any such
exchange; provided, however, that the failure to give, or any defect in, such
notice shall not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders of such Rights
at
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<PAGE> 52
their last addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each such notice
of exchange will state the method by which the exchange of the shares of Common
Stock for Rights will be effected and, in the event of any partial exchange,
the number of Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights which have
become void pursuant to the provisions of Section 11(a)(ii) hereof) held by
each holder of Rights.
(c) In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize additional
shares of Common Stock for issuance upon exchange of the Rights. In the event
the Company shall, after good faith effort, be unable to take all such action
as may be necessary to authorize such additional shares of Common Stock, the
Company shall substitute, for each share of Common Stock that would otherwise
be issuable upon exchange of a Right, a number of Preferred Shares or fraction
thereof such that the current per share market price of one Preferred Share
multiplied by such number or fraction is equal to the current per share market
price of one share of Common Stock as of the date of issuance of such Preferred
Shares or fraction thereof.
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<PAGE> 53
(d) The Company shall not be required to issue fractions of
shares of Common Stock or to distribute certificates which evidence fractional
shares of Common Stock. In lieu of such fractional shares of Common Stock, the
Company shall pay to the registered holders of the Right Certificates with
regard to which such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of a whole share of Common Stock. For the purposes of this paragraph
(d), the current market value of a whole share of Common Stock shall be the
closing price of a share of Common Stock (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) for the Trading Day immediately prior to
the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case at any
time after the Record Date the Company shall propose (i) to pay any dividend
payable in stock of any class to the holders of its Preferred Shares or to make
any other distribution to the holders of its Preferred Shares (other than a
regular quarterly cash dividend), (ii) to offer to the holders of its Preferred
Shares rights or warrants to subscribe for or to purchase any additional
Preferred Shares or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of its Preferred Shares
(other than a reclassification involving only the subdivision of outstanding
Preferred Shares), (iv) to effect any consolidation or merger into or with, or
to effect any sale or other transfer (or to permit one or more of its
-50-
<PAGE> 54
Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to declare or
pay any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares),
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, if any
such date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least 10 days prior to the record
date for determining holders of the Preferred Shares for purposes of such
action, and in the case of any such other action, at least 10 days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the Common Shares and/or Preferred Shares, whichever shall be
the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof
shall occur, then the Company shall as soon as practicable
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<PAGE> 55
thereafter give to each holder of a Right Certificate, in accordance with
Section 26 hereof, a notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to holders of Rights
under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Rockwell International Corporation
2201 Seal Beach Boulevard
Seal Beach, California 90740-8250
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
4 Station Square, 3rd Floor
Pittsburgh, Pennsylvania 15219
Attention: Manager of Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right
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<PAGE> 56
Certificate shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such holder as
shown on the registry books of the Company.
Section 27. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval of any
holders of Right Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other provisions
with respect to the Rights which the Company may deem necessary or desirable,
any such supplement or amendment to be evidenced by a writing signed by the
Company and the Rights Agent; provided, however, that from and after such time
as any Person becomes an Acquiring Person, this Agreement shall not be amended
in any manner which would adversely affect the interests of the holders of
Rights. Without limiting the foregoing, the Company may at any time prior to
such time as any Person becomes an Acquiring Person amend this Agreement to
lower the thresholds set forth in Sections 1(a) and 3(a) to not less than the
greater of (i) the sum of .001% and the largest percentage of the outstanding
Common Shares then known by the Company to be beneficially owned by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan) and (ii) 10%.
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<PAGE> 57
Section 28. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Rights Agent
and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
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<PAGE> 58
Section 32. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
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<PAGE> 59
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and year first
above written.
NEW ROCKWELL INTERNATIONAL
CORPORATION
Attest:
By /s/ EDWARD T. MOEN, II By /s/ WILLIAM J. CALISE, JR.
--------------------------- -----------------------------
Title: Assistant Secretary Title: Senior Vice President,
General Counsel and
Secretary
Attest: CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By /s/ KATHLEEN KENNELLY By /s/ MARILYN SPISAK
--------------------------- -----------------------------
Title: Assistant Vice Title: Vice President
President
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<PAGE> 60
Exhibit A
Form of Right Certificate
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER _________, 2006 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUB-
JECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
ROCKWELL INTERNATIONAL CORPORATION
This certifies that ____________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of November 30, 1996 (the "Rights Agreement"),
between Rockwell International Corporation, a Delaware corporation (formerly
New Rockwell International Corporation) (the "Company"), and ChaseMellon
Shareholder Services, L.L.C. (the "Rights Agent"), to purchase from the Company
at any time after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M., New York City time, on __________, 2006 at
the principal office of the Rights Agent, or at the office of its successor as
Rights Agent, one one-hundredth of a fully paid non-assessable share of Series
A Junior Participating Preferred Stock, without par value (the "Preferred
Shares"), of the Company, at a purchase price of $250 per one one-hundredth of
a Preferred Share (the "Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase duly executed.
The number of Rights evidenced by this Right Certificate (and the number of one
one-hundredths of a Preferred Share which may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of __________, 1996, based on the Preferred Shares as
constituted at such date. As provided in the Rights Agreement, the Purchase
Price and the number of one one-hundredths of a Preferred Share which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of certain
events.
A-1
<PAGE> 61
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description
of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned offices of the Rights
Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights Agent, may
be exchanged for another Right Certificate or Right Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of Preferred Shares as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such holder to purchase. If
this Right Certificate shall be exercised in part, the holder shall be entitled
to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a
redemption price of $.01 per Right or (ii) may be exchanged in whole or in part
for Preferred Shares or shares of the Company's Common Stock, par value $1 per
share.
No fractional Preferred Shares will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareowner of the Company or any right to vote for the
election of directors or upon any matter submitted to shareowners at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareowners (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
A-2
<PAGE> 62
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of ___________________.
ATTEST: ROCKWELL INTERNATIONAL
CORPORATION
By:
- ------------------------------ ----------------------
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C.
By:
---------------------------
Authorized Signature
A-3
<PAGE> 63
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ________________________________ hereby
sells, assigns and transfers unto _________________________________________
___________________________________________________________________________
(Please print name and address of transferee)
- ---------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ____________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated:
-----------------------
-------------------------------
Signature
- -------------------------------
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
- -------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
-------------------------------
Signature
- -------------------------------
- -------------------------------------------------------------------------------
A-4
<PAGE> 64
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: Rockwell International Corporation
The undersigned hereby irrevocably elects to exercise
___________________________ Rights represented by this Right Certificate to
purchase the Preferred Shares issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
- ----------------------------------------------------------------------------
(Please print name and address)
- ----------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- ----------------------------------------------------------------------------
(Please print name and address)
- ----------------------------------------------------------------------------
Dated:
---------------------
-------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
A-5
<PAGE> 65
Form of Reverse Side of Right Certificate -- continued
- -------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
-------------------------------
Signature
- -------------------------------------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner of
the Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
A-6
<PAGE> 1
EXHIBIT 4-d-2
ROCKWELL INTERNATIONAL CORPORATION
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS
ON SEPTEMBER 11, 1996
RESOLVED, that the amendments to the Rockwell International
Corporation Savings Plan described in the document entitled "Memorandum
of Proposed Amendments to the Rockwell International Corporation
Savings Plan," a copy of which was presented to and hereby ordered
filed with the records of this meeting, be, and they hereby are,
authorized, approved and adopted, effective as of the dates set forth
in that Memorandum.
<PAGE> 2
MEMORANDUM OF PROPOSED AMENDMENTS TO THE
ROCKWELL INTERNATIONAL CORPORATION
SAVINGS PLAN
Amend the Rockwell International Corporation Savings Plan (the "Plan"),
effective as of September 1, 1996, unless otherwise provided below: (i) to
cause the transfer of certain Participant account balances from the Rockwell
Savings Plan for Certain Eligible Employees into the Plan; (ii) to permit
Eligible Employees to participate in and make contributions to the Plan upon
completion of thirty (30) days of employment with an Affiliated Company, but
with Company Contributions continuing to be made to such Eligible Employees'
accounts following the completion of fifty-two (52) weeks of employment; (iii)
to permit an Eligible Employee to transfer his entire account balance from his
previous employer's qualified individual account plan; (iv) to put into effect,
subject to completion of the transaction (the "A&D Transaction") described in
the Agreement and Plan of Merger, dated as of July 31, 1996, among Rockwell
International Corporation, The Boeing Company and Boeing NA, Inc. and certain
collateral documents related thereto, certain of the provisions of such
Agreement as they relate to this Plan; and (v) to cause all of the Plan
Accounts of all Plan Participants as of the closing date of such A&D
Transaction to be fully vested and nonforfeitable.
(1) Effective as of the closing date of the A&D Transaction, amend the
Preamble to the Plan by adding a new paragraph to the said Preamble, such
new paragraph to read as follows:
Pursuant to the provisions of the Agreement and Plan of Merger, dated
as of July 31, 1996, among Rockwell International Corporation, The
Boeing Company and Boeing NA, Inc. and certain collateral documents
related thereto (referred to collectively herein as the "A&D
Agreement"), the role of sponsor of the Plan as of the closing date
of the transaction described in such A&D Agreement (the "A&D
Transaction") will be assumed by a newly-formed Rockwell
International Corporation. In addition, the terms of the A&D
Agreement provide that individuals who, prior to the closing date of
the A&D Transaction were Eligible Employees of Rockwell International
Corporation or its Affiliated Companies pursuant to the terms of this
Plan prior to such Transaction, but who, as a result of the
Transaction, are no longer Employees or Eligible Employees hereunder
will be fully vested in their Account balances hereunder but will no
longer be permitted to make contributions or have Company
Contributions made on their behalf to the Plan following the closing
date of the A&D Transaction.
<PAGE> 3
(2) Effective as of the closing date of the A&D Transaction, amend Article I
of the Plan by re-designating the present Sections 1.010 and 1.020,
respectively, as Sections 1.020 and 1.025 and by inserting new Sections
1.005, 1.010 and 1.015, to read as follows:
1.005 "A&D Agreement" means the Agreement and Plan of Merger, dated
as of July 31, 1996, among Rockwell International Corporation,
The Boeing Company and Boeing NA, Inc. and certain collateral
documents related thereto.
1.010 "A&D Employee" means a person who, prior to the closing date
of the A&D Transaction, was an Employee or Eligible Employee
of the Company or an Affiliated Company as constituted under
the terms of this Plan prior to such Transaction, but who, as
a result of the Transaction, is no longer an Employee or
Eligible Employee of the Company or an Affiliated Company.
1.015 "A&D Transaction" means the transaction described in and
placed into effect pursuant to the A&D Agreement.
(3) Amend Section 1.055 of the Plan in its entirety and add a new Section
1.058 to the Plan, such Sections to read as follows:
1.055 "Board of Directors" means the Board of Directors of Rockwell
International Corporation; provided, however, that any action
or determination of the Board of Directors under Sections
1.030(c), 1.090, 1.190, 2.020(d) and 13.020 may be taken by
any officer or officers of Rockwell International Corporation
authorized by the Board of Directors.
1.058 "Boeing" means The Boeing Company, a Delaware corporation and
its affiliates, specifically including Boeing North American,
Inc.
(4) Effective as of the closing date of the A&D Transaction, amend Sections
1.080 and 1.085 of the Plan in their entirety to read as follows:
1.080 "Common Stock" means the common stock, other than Class A
Stock, of Rockwell International Corporation and, as of the
closing date of the A&D Transaction, the common stock of The
Boeing Company.
<PAGE> 4
1.085 "Common Unit" means a Unit of Stock Fund A, Stock Fund B,
Stock Fund C or Stock Fund D attributable to Common Stock.
(5) Amend Article I of the Plan by adding a new Section 1.285 thereto, such
new Section to read as follows:
1.285 "Participant Contributions" means a Participant's Compensation
Deduction Contributions, Supplemental Deduction Contributions,
Compensation Deferral Contributions and Supplemental Deferral
Contributions.
(6) Effective as of the closing date of the A&D Transaction, amend Article I
of the Plan by re-designating the present Section 1.360 as Section 1.355
and by adding new Sections 1.360 and 1.365 to the said Article, such new
Sections to read as follows:
1.360 "Stock Fund C" means the fund established by the Trustee
pursuant to Section 10.020(a)(vii).
1.365 "Stock Fund D" means the fund established by the Trustee
pursuant to Section 10.020(a)(viii).
(7) Effective as of the closing date of the A&D Transaction, amend Section
1.430 of the Plan in its entirety to read as follows:
1.430 "Trust Fund" means the fund, including the earnings thereon,
held by the Trustee for all contributions made by Participants
and the Company pursuant to the Plan. The Trust Fund shall be
divided into a Diversified Fund, Fixed Income Fund, Guaranteed
Return Fund, Intermediate Term Bond Fund, Stock Fund A, Stock
Fund B and, effective as of the closing date of the A&D
Transaction, Stock Fund C and Stock Fund D.
(8) Amend Section 2.010 of the Plan in its entirety to read as follows:
2.010 Initial Participation.
(a) Subject to subsections (b) and (c) of this Section:
(i) an Eligible Employee who first becomes an Employee prior
to October 1, 1987, may elect to participate in the Plan
if he has completed at least twenty-six (26) weeks of
employment with an Affiliated Company;
<PAGE> 5
(ii) an Eligible Employee who first becomes an Employee on or
after October 1, 1987, may elect to participate in the
Plan if he has completed at least fifty-two (52) weeks of
employment with an Affiliated Company; and
(iii) effective October 1, 1996, an Eligible Employee may elect
to participate in the Plan as of the first day of the
month following his completion of one month of employment
with an Affiliated Company.
An election to participate shall be made with at least fifteen
(15) days notice to the Plan Administrator and shall become
effective on the first payroll payment date following the
expiration of the notice period. An election by an Eligible
Employee to contribute to the Plan shall remain in effect except
as provided in subsections (b) and (c).
(b) No contributions shall be made by, or with respect to, any
Participant after any of the following events until such
Participant again makes an election that is effective under
subsection (a):
(i) the Participant ceases to be an Employee;
(ii) the Participant receives a distribution under Section
5.020, 5.030 or 5.040; or
(iii) the Participant voluntarily elects to have contributions
suspended under Section 8.010.
(c) No contributions shall be made by, or with respect to, any
Participant during any period of suspension of contributions
described in Section 8.010 or Section 8.020.
(9) Amend subsection (c) of Section 2.020 of the Plan in its entirety to read
as follows:
(c) In addition to the elections and authorizations set forth in (a)
and (b), the Participant shall elect, as provided in Section
2.060, in which Investment Funds his Participant Contributions
and, if applicable, his Transfer Contributions are to be
invested; provided, however, that the Participant shall not be
permitted to have his Participant Contributions and Transfer
Contributions invested in Stock Funds A, C and D. Such
investments shall be elected by the Participant among the
Investment Funds in increments of five percent (5%), with the
total of the elected percentage increments equaling one hundred
percent (100%).
<PAGE> 6
(10) Amend Section 2.025 of the Plan by re-designating the present subsections
(c) and (d) as new subsections (e) and (f) and by inserting new
subsections (c) and (d) to read as follows:
(c) With the prior consent of the Plan Administrator, a Participant
who is presently an Eligible Employee but who formerly, though
an Employee, was a participant in a qualified individual account
plan associated with a business or location to which the Company
has extended this Plan after on or after May 1, 1996, may cause
his account balances in such an individual account plan to be
transferred to this Plan. Such transferred account balances
(which shall be entirely in cash or, if such balances consist in
whole or in part of participant loans from the transferring
plan, in cash and in kind) shall constitute Transfer
Contributions and shall not constitute Deferral or Deduction
Contributions under Section 2.020.
(d) A Participant who is presently an Eligible Employee but who
formerly was not an Eligible Employee may elect (by providing
the Plan Administrator with notice thereof) to have the entire
amount credited to his account in a qualified individual account
plan of a former employer transferred to this Plan or, in
accordance with and subject to applicable provisions of the
Code, may elect to transfer to this Plan any portion of the
balance credited to him in a qualified trust which has been paid
to him in a qualifying rollover distribution as defined in
section 402(a)(5)(D)(i) of the Code, subject to the following:
(i) Such Transfer Contributions are eligible for receipt
hereunder only if they are derived entirely from employer
contributions (and earnings thereon) to a qualified profit
sharing plan which were contributed either pursuant to a
qualified cash or deferred arrangement under Code section
401(k) or as amounts in which the Participant had a
nonforfeitable interest and which were based upon the
amount of contributions in a qualified cash or deferred
arrangement; and
<PAGE> 7
(ii) No portion of such Transfer Contributions may be derived
from a transfer from a qualified plan which at any time
had provided benefit payments in a form other than a lump
sum while such assets or balances were held under such
plan.
(11) Effective as of the closing date of the A&D Transaction, amend Section
2.060 of the Plan in its entirety to read as follows:
2.060 Changes in Investment Elections. A Participant may make an
Investment Fund election or change any previous Investment
Fund election he has made under Section 2.020(c) regarding his
Participant Contributions; provided, however, that the
Participant shall not be permitted to elect to have investment
of his Participant Contributions changed to Stock Funds A, C
and D. Such an election or change of election may be made by
the Participant once per calendar year quarter and shall be
effective as of the last business day of the month in which
the election or change of election is made.
(12) Amend subsections (a) and (b) of Section 2.070 in their entirety to read
as follows:
(a) A Participant may elect once in each calendar year quarter to
have the whole or portions of the value of Units in one or more
of the Investment Funds (other than Stock Fund B and the
Guaranteed Return Fund), which Units are attributable to his
Deferral, Deduction and Transfer Contributions under Section
2.020, transferred into, and then converted to Units of, one or
more of the other Investment Funds (including Stock Fund B, but
excluding the Guaranteed Return Fund). The Unit transfers and
conversions described in the preceding sentence shall be
effected on the first day of the calendar month immediately
succeeding the month in which elected by the Participant and
shall be in increments of 5% of the value of the Participant's
Units in the transferring Fund(s).
(b) In addition to the elections available under subsection (a), the
following elections shall be available to eligible Participants:
(i) A Participant who has not attained age fifty-five (55) may
elect once in each calendar year, by giving the Company
notice of such election, to have ten percent (10%) of the
total value of all Units (or 100% of such total value, if
$25.00 or less) in Stock Fund B which are attributable to
the Participant's Deferral, Deduction and Transfer
Contributions transferred, in increments of five percent
(5%), into any one or more of the Investment Funds, other
than the Guaranteed Return Fund.
<PAGE> 8
(ii) A Participant who is still an Employee and has attained
age fifty-five (55), but not age sixty-five (65), may
elect once in each calendar year, by giving the Company
notice of such election, to have fifty percent (50%) of
the total value of all Units (or 100% of such total value,
if $25.00 or less) in Stock Fund B which are attributable
to the Participant's Deferral, Deduction and Transfer
Contributions transferred, in increments of five percent
(5%), into any one or more of the Investment Funds, other
than the Guaranteed Return Fund; provided, however, that
the Participant may not make an election under this
paragraph (ii) during the same calendar year in which an
election has been made under paragraph (i).
(iii) A Participant who is still an Employee and has attained
age sixty-five (65) or a Retiree of any age (including,
for purposes of this paragraph, an individual who has
retired from employment with Boeing) who has elected
deferred distribution pursuant to Section 5.020(b) may
elect once each calendar year quarter to have the total
value or a portion (in 5% increments) of the total value
of all Units in Stock Funds A, B and C which are
attributable, respectively, to Company Contributions,
Participant Contributions and Transfer Contributions
transferred, in increments of five percent (5%), into any
one or more of the Investment Funds, other than the
Guaranteed Return Fund or Stock Fund B.
(iv) If, as a result of an election made pursuant to paragraph
(iii) by a Participant who is still an Employee, one
hundred percent (100%) of the Participant's interest in
Stock Fund A has been transferred to other Investment
Funds, all subsequent Company Contributions, if any, made
to the Participant's Company Contributions Account after
the effective date of such election shall be made in cash
and shall be invested in the same manner as are the
investments described in Section 2.020(c). If less than
one hundred percent (100%) of the Participant's interest
in Stock Fund A has been so transferred, such Company
Contributions shall continue to be made in the manner
described in Section 3.010(b).
<PAGE> 9
(13) Effective as of the closing date of the A&D Transaction, amend Section
2.070 of the Plan by re-designating current subsections (c), (d) and (e)
as subsections (e), (f) and (g), respectively; by re-designating current
subsection (f) as subsection (c); and by adding a new subsection (d) to
the said Section 2.070, such new subsection to read as follows:
(d) A Participant with Units in Stock Fund D may elect once in each
calendar year quarter, by giving the Plan Administrator notice
of such election, to have the whole or portions of the value of
Units in Stock Fund D, which Units are attributable to the
Participant's own Participant Contributions and, if applicable,
to his Transfer Contributions transferred into, and then
converted to Units of, one or more of the Investment Funds
(excluding Stock Fund B and the Guaranteed Return Fund). The
Unit transfers and conversions described in the preceding
sentence shall be effected on the first day of the calendar
month immediately succeeding the month in which elected by the
Participant and shall be in increments of 5% of the value of the
Participant's Units in the said Stock Fund D.
(14) Amend subsection (a) of Section 3.010 in its entirety to read as follows:
(a) The Company shall contribute to the Trust Fund an amount equal
to seventy-five percent (75%) of a Participant's Compensation
Deferral Contributions and Compensation Deduction Contributions;
provided, however, that notwithstanding the provisions of
Section 2.010(a)(iii), no such Company Contributions shall be
made until the Participant has completed fifty-two (52) weeks of
employment with the Company or an Affiliated Company. In
addition, no Company Contributions shall be made with respect to
Supplemental Deduction Contributions, Supplemental Deferral
Contributions or Transfer Contributions.
(15) Effective as of the closing date of the A&D Transaction, amend the final
sentence of Section 4.010 of the said Section, such sentence to read as
follows:
Such separate Accounts shall also contain sufficient information to
permit, with respect to Stock Funds A, B, C and D, a determination of
the number of Common Units and with respect to Stock Funds A and B, a
determination of the number of Class A Units in such Participant's
Account.
<PAGE> 10
(16) Effective as of the closing date of the A&D Transaction, amend
subsections (a) and (b) of Section 4.020 to read as follows:
(a) The interest of each Participant in the Investment Funds and in
Stock Funds A, C and D (including that part of the Diversified
Fund or the Fixed Income Fund resulting from Company
Contributions) shall be represented by Units allocated to his
Accounts. The value of each Unit shall be One Dollar ($1.00) for
the contributions deposited on behalf of each Participant prior
to the first Valuation Date following the effective date of the
particular Fund.
(b) Each contribution on behalf of a Participant to, or payment made
to a Participant from, an Investment Fund or Stock Fund A, C or
D shall result in a credit or charge to the Account representing
his interest in such Fund or contract under his Company
Contributions Account, Compensation Deferral Account,
Supplemental Deferral Account, Compensation Deduction Account,
Supplemental Deduction Account or Transfer Contribution Account,
as applicable, and shall be equal to the number of Units
contributed or paid, as the case may be.
(17) Effective as of the closing date of the A&D Transaction, amend subsection
(a) of Section 5.010 by adding following sentence at the end of such
subsection:
Any Participant who had less than five (5) years of Continuous
Employment as of the closing date of the A&D Transaction shall be
fully vested in the Units in his Company Contributions Account
resulting from Company Contributions made prior thereto, but, except
as otherwise provided in the Plan, shall not become vested in any
Units attributable to Company Contributions subsequent to that date
until he has accumulated five (5) years of Continuous Employment.
(18) Effective as of the closing date of the A&D Transaction, amend in its
entirety paragraph (ii) of Section 5.020(b) of the Plan to read as
follows:
(ii) The amounts which a Participant or Beneficiary (in the case of
the Participant's death) shall receive under paragraph (ii)
shall be as follows:
<PAGE> 11
(A) With respect to Funds other than Stock Funds A, B, C and
D, the Participant shall receive the full dollar balance
of his Accounts in such Funds. Such balance shall be
determined in the manner provided by Section 4.040, by
reference to the value of Units in such Participant's
Accounts on the Valuation Date coinciding with or
immediately preceding:
(I) the date of the Participant's Retirement, Layoff or
termination; or
(II) in the case of the Participant's death or disability,
the date all documentation necessary to effect
distribution from the Plan is received by the Plan
Administrator.
(B) With respect to Stock Funds A, B, C and D, the dollar
balances in such Participant Accounts in such Funds as of
the Valuation Date coinciding with or immediately
preceding:
(I) such Retirement, Layoff or termination; or
(II) in the case of the Participant's death or disability,
the date all documentation necessary to effect
distribution from the Plan is received by the Plan
Administrator,
(such balances to be determined in the manner provided by
Section 4.040 separately by reference to the Common Units and
any Class A Units in the Participant's Account on such Valuation
Date and the respective Unit values on such Valuation Date)
shall be applied to Common Stock, to the extent attributable to
Common Units, and Class A Stock, to the extent attributable to
Class A Units. The Participant shall receive shares of Common
Stock equal in number to the maximum number of whole shares of
Common Stock which could be purchased at the closing price of
Common Stock as reflected on the New York Stock Exchange --
Composite Transactions listing on such Valuation Date (or, in
the event such Valuation Date falls on a date on which for any
reason there are no trades of such stock reflected on such
listing, the last trading day preceding such Valuation Date)
with the portion of such dollar balance attributable to the
Common Units in his Account, and shares of Class A Stock equal
in number to the maximum number of whole shares of Common Stock
which could be purchased at such closing
<PAGE> 12
price with the portion, if any, of such dollar balance
attributable to Class A Units, in his Account. The Participant
shall be paid in cash the dollar amounts remaining in his
Accounts in Stock Funds A, B, C and D after reduction of each
such Account by the value, based on such closing price, of the
whole shares previously described. In addition, the Participant
shall be paid in cash the amount of any cash dividends received
since such Valuation Date attributable to the number of whole
shares of Common Stock and Class A Stock distributed to him and
the dollar value of any contributions to Stock Fund A and Stock
Fund B in respect of such Participant between such Valuation
Date and the date of such Retirement, death, Layoff or
termination.
(19) Effective as of the closing date of the A&D Transaction, amend in its
entirety paragraph (ii) of Section 5.040(a) of the Plan to read as
follows:
(ii) With respect to Stock Funds B, C and D, the dollar balance or
balances in such Participant's Accounts in such Funds, and with
respect to Stock Fund A the vested portion of the dollar balance
or balances in such Participant's Accounts in such Fund, both as
of the Valuation Date immediately preceding such termination
(such balance or balances to be determined in the manner
provided by Section 4.040 separately by reference to the Common
Units and any Class A Units in such Participant's Account on
such Valuation Date and the value of each such Unit on such
Valuation Date) shall each be applied to Common Stock to the
extent attributable to Common Units and Class A Stock to the
extent attributable to Class A Units. With respect to each such
Fund, the Participant shall receive shares of Common Stock equal
in number to the maximum number of whole shares of Common Stock
which could be purchased at the closing price of Common Stock as
reflected on the New York Stock Exchange -- Composite
Transactions listing on such Valuation Date (or, in the event
such Valuation Date falls on a date on which for any reason
there are no trades of such stock reflected on such listing, the
last trading day preceding such Valuation Date) with such dollar
balance (in the case of Stock Fund A, the vested portion of such
dollar balance) attributable to the Common Units in his Account
in such fund, and shares of Class A Stock equal in number to the
maximum number of whole shares of Common Stock which could be
purchased at such closing price with the portion, if any, of
such dollar balance (in the case of Stock Fund A, the vested
portion, if any, of such dollar balance) attributable to Class A
Units in his Account in such Fund. The Participant shall be paid
in cash the dollar amount remaining in his Account in Stock
Funds B, C and D and in the vested portion of his Account in
Stock Fund A after reduction by the value, based on such closing
price, of the whole shares previously described. In addition,
the Participant shall be paid in cash the amount of any cash
dividends received since such Valuation Date attributable to the
number of whole shares of Common Stock and Class A Stock
distributed to him as described in this paragraph (ii).
<PAGE> 13
(20) Effective as of the closing date of the A&D Transaction, amend
subsections (a) and (b) of Section 6.040 of the Plan in their entirety to
read as follows:
(a) Withdrawals pursuant to Sections 6.010 and 6.020 shall be taken
from the Employee's Accounts in the Investment Funds and Stock
Fund D in a pro rata fashion, based upon the relative size of
such Accounts. Any withdrawal from an Employee's Accounts in the
Guaranteed Return Fund shall be taken in reverse sequence by
withdrawing amounts from the Fund's Account's in the contracts
on a last-in first-out basis.
(b) Notwithstanding the above subsection (a), an Employee may elect
to have any such withdrawal taken:
(i) first from the Employee's Accounts in Stock Funds B and D,
with any additional withdrawal amount to be taken on a pro
rata basis from the Employee's Accounts in the remaining
Investment Funds other than Stock Fund B; or
(ii) first on a pro rata basis from the Employee's Accounts in
Investment Funds other than Stock Fund B, with any
additional withdrawal amount to then be taken from the
Employee's Accounts in Stock Funds B and D.
(21) Effective as of the closing date of the A&D Transaction, amend
subsections (c) and (d) of Section 6.050 of the Plan in their entirety to
read as follows:
(c) Withdrawals pursuant to subsection (a) shall be taken from the
Participant's Fund Accounts, as elected by the Participant,
either:
(i) first from his Accounts in Stock Funds B and D, with any
additional withdrawal amount to be taken on a pro rata
basis from the Employee's Accounts in the remaining
Investment Funds other than Stock Fund B; or
(ii) first on a pro rata basis from his Accounts in Investment
Funds other than Stock Fund B, with any additional
withdrawal amount to then be taken from his Accounts in
Stock Funds B and D.
<PAGE> 14
Any withdrawal from the Participant's Accounts in the Guaranteed
Return Fund shall be taken in reverse sequence by withdrawing
amounts from the Fund's Account's in the contracts on a last-in
first-out basis.
(d) Withdrawals (including those from Stock Funds B and D) shall be
in cash and for a minimum amount of $100. An Employee may not
make a request for partial withdrawal within twenty-six (26)
weeks of any prior request for partial withdrawal; provided,
however, that this limitation upon the ability of an Employee to
make a partial withdrawal (including hardship withdrawals
pursuant to the provisions of subsection (a) of this Section)
within twenty-six (26) weeks of any prior request for a partial
withdrawal shall be waived by the Plan Administrator for the
six-month period immediately following any due declaration by
the President of the United States under applicable federal law
that a particular occurrence or situation constitutes a national
disaster condition, if such partial withdrawal is requested for
a reason associated with financial need of the Employee
resulting from the effects of such condition.
(22) Effective as of the closing date of the A&D Transaction, amend subsection
(b) of Section 6.060 of the Plan to read as follows:
(b) Common Stock, in the case of amounts attributable to the
Participant's interest, if any, in Stock Funds A, B, C and D,
including Common Stock issued on conversion of any Class A Stock
in the Participant's interest in Stock Funds A and B; and
(23) Effective as of the closing date of the A&D Transaction, amend subsection
(a) of Section 10.020 of the Plan by adding paragraphs (vii) and (viii)
thereto, to read as follows:
(vii) Stock Fund C, consisting of Common Stock of Boeing otherwise
receivable by Stock Fund A pursuant to the A&D Agreement and as
a part of the A&D Transaction; provided, however, that any
dividends or other income otherwise receivable by Stock Fund C
may shall be invested by the Trustee in the same manner as are
Participant Contributions pursuant to Section 2.020(c), except
that such dividends may not be invested in Stock Fund B; and
<PAGE> 15
(viii) Stock Fund D, consisting of Common Stock of Boeing otherwise
receivable by Stock Fund B pursuant to the A&D Agreement and as
a part of the A&D Transaction; provided, however, that any
dividends or other income otherwise receivable by Stock Fund D
shall be invested by the Trustee in the same manner as are
Participant Contributions pursuant to Section 2.020(c), except
that such dividends may not be invested in Stock Fund B.
(24) Effective as of the closing date of the A&D Transaction, amend paragraph
(i) of Section 10.020(b) of the Plan in its entirety to read as follows:
(i) The Plan Committee may from time to time direct the segregation
of all or a portion of the Investment Funds, other than the
Guaranteed Return Fund and Stock Fund B, and of Stock Funds C
and D and shall appoint Investment Managers with respect to the
portions of the Investment Funds so segregated. Any Investment
Manager so appointed shall have full discretion to direct the
Trustee with respect to the acquisition, retention, management
and disposition of the assets from time to time comprising the
Investment Manager's Account.
(25) Effective as of the closing date of the A&D Transaction, amend paragraph
(iii) of Section 10.020(b) of the Plan in its entirety to read as
follows:
(iii) The Trustee shall use all cash in Stock Fund A and Stock Fund B
to purchase Common Stock of the Company. Any Class A Stock
received by the Trustee as a Company Contribution or as a stock
dividend or other distribution on shares of Common Stock or
Class A Stock in Stock Fund A or Stock Fund B shall be retained
as such except to the extent necessary to make cash payments
from such fund as provided in the Plan. Any Boeing Common Stock
received by the Trustee as a stock dividend or other
distribution shall be sold by the Trustee on the open market.
Rights, options, or warrants offered to purchase the Company's
Common Stock or Class A Stock shall be exercised by the Trustee
in its discretion but only to the extent that there is cash
available in Stock Fund A and Stock Fund B for investment. To
the extent they are not exercised, the same shall be sold on the
open market. Rights, options, or warrants to purchase securities
of the Company or its subsidiaries or affiliates, other than the
Company's Common Stock or Class A Stock, or to purchase
securities of Boeing shall be sold by the Trustee on the open
market.
<PAGE> 16
(26) Effective as of the closing date of the A&D Transaction, amend Section
10.030 in its entirety to read as follows:
10.030 Duty of Trustee as to Stock in Stock Funds.
(a) Except as otherwise provided in this Section 10.030, the duty
with respect to the voting, retention, and tendering of Common
Stock held in Stock Funds A, B, C and D and Class A Stock held
in Stock Funds A and B shall be solely that of the Trustee, to
be exercised solely in the Trustee's discretion.
(b) With respect to any matter as to which a vote of the outstanding
shares of Common Stock or Class A Stock is solicited:
(i) the Trustee shall solicit the direction in writing of each
Participant, as to the manner in which voting rights of
the Participant's vested and non-vested shares of Common
Stock held in or credited to Stock Fund A, B, C or D, or
of shares of Class A Stock held in or credited to Stock
Fund A or B, as of the record date fixed for determining
the holders of Common Stock or Class A Stock entitled to
vote on such matter are to be exercised with respect to
such matter, and the Trustee shall exercise the voting
rights of such shares with respect to such matter in
accordance with the last-dated timely written direction,
if any, of such Participant; and
(ii) the Trustee, in its sole discretion, shall exercise voting
rights of shares of Common Stock held in Stock Fund A, B,
C or D, or of shares of Class A Stock held in or credited
to Stock Fund A or B, as to which no timely direction has
been received pursuant to paragraph (i).
(c) In the event of any Tender Offer (as defined in Section 1.405):
(i) the Trustee shall solicit the direction in writing of each
Participant, as to the tendering or depositing of any
vested or non-vested shares of Common Stock held in Stock
Fund A, B, C or D, or of Common Stock issuable on
conversion of Class A Stock held in Stock Fund A or B as
of the Tender Date with respect to such Participant and,
except as limited by subsection (d) hereof, shall tender
or deposit such shares pursuant to any such Tender Offer
in accordance with the last dated timely written
direction, if any, of such Participant;
<PAGE> 17
(ii) the Trustee, in its sole discretion, shall have the duty,
except as limited by subsection (d) hereof, with respect
to the retention, tendering or depositing of shares of
Common Stock held in Stock Fund A, B, C or D or of Class A
Stock held (including any shares of Common Stock issuable
on conversion of Class A Stock held) in Stock Fund A or B
as to which no timely direction has been received pursuant
to paragraph (i);
(d) Shares of Common Stock or Class A Stock held, and any shares of
Common Stock issuable on conversion of Class A Stock held, in
Stock Funds A and B, as well as shares of Common Stock held in
Stock Funds C and D, shall not be tendered or deposited by the
Trustee pursuant to any such Tender Offer until the earlier of:
(i) immediately preceding the scheduled expiration of the
Tender Offer pursuant to which such shares are to be
tendered or deposited, or
(ii) immediately preceding the expiration of the period during
which such shares of Common Stock (including shares of
Common Stock issuable on conversion of Class A Stock) or
Class A Stock will be taken up and paid for on a pro rata
basis pursuant to such Tender Offer, or
(iii) the expiration of 30 days from the date of the Trustee's
solicitation of Participants' written direction pursuant
to subsection (c)(i).
(e) The duty with respect to the withdrawal, or other exercise of
any right of withdrawal, of shares of Common Stock held, and any
shares of Common Stock issuable on conversion of Class A Stock
held, in Stock Fund A or B, or of shares of Common Stock held in
Stock Fund C or D, which have been tendered or deposited
pursuant to any such Tender Offer shall be solely that of the
Trustee; provided that the Trustee may solicit the direction in
writing of each Participant with respect to whom any such shares
of Common Stock (including shares of Common Stock issued on
conversion of Class A Stock) or Class A Stock have been tendered
or deposited pursuant to any such Tender Offer as to the
withdrawal of, or other exercise of any right to withdraw, such
shares of Common Stock (including shares of Common Stock issued
on conversion of Class A Stock) or Class A Stock, and if such
solicitation is made, the Trustee shall act in accordance with
the last dated timely written direction, if any, of each such
Participant. As used herein, the term 'Tender Date' means the
date on which the Trustee tenders or deposits any shares of the
Common Stock (including shares of Common Stock issued on
conversion of Class A Stock) or Class A Stock either
representing the vested or non-vested interest of such
Participant in Stock Fund A or credited to the Accounts in Stock
Funds B, C and D of such Participant.
<PAGE> 1
EXHIBIT 4-d-3
ROCKWELL INTERNATIONAL CORPORATION
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS
ON NOVEMBER 6, 1996
- AMENDMENTS TO EMPLOYEE BENEFIT PLANS
RESOLVED, that the amendments to each of the employee benefit
plans of this Corporation listed below, as described in the Memorandum
listed opposite the name of each such plan, a copy of each of which was
presented to and ordered filed with the records of this meeting, be,
and they hereby are, approved and adopted, effective as of the dates
set forth in the respective Memorandum:
<TABLE>
<CAPTION>
Plan Memorandum
---- ----------
<S> <C>
Rockwell International Corporation Memorandum of Proposed
Savings Plan Amendments to the Rockwell
International Corporation Savings Plan
Rockwell International Corporation Memorandum of Proposed
Savings Plan for Certain Represented Amendments to the Rockwell
Hourly Employees Retirement Savings Plan for Certain
Represented Hourly Employees
Rockwell Retirement Savings Plan for Memorandum of Proposed
Certain Employees Amendments to the Rockwell
Retirement Savings Plan for Certain
Employees
Rockwell International Corporation Memorandum of Proposed
Asheville Employees Retirement Amendments to Various Defined
Savings Plan--Truck Axle Division Contribution Plans
Rockwell International Corporation Memorandum of Proposed
York Employees Retirement Savings Amendments to Various Defined
Plan--Truck Axle Division Contribution Plans
Rockwell International Corporation Memorandum of Proposed
Retirement Plan for Hourly Amendments to Various Defined
Employees--Gordonsville, Tennessee Contribution Plans
Rockwell International Corporation Memorandum of Proposed
Gordonsville, Tennessee Employees Amendments to Various Defined
Savings Plan Contribution Plans
</TABLE>
and further
<PAGE> 2
RESOLVED, that the officers of this Corporation be, and each of
them hereby is, authorized and empowered to take, or cause to be taken,
such actions and to execute and deliver, or cause to be executed and
delivered, such instruments, certificates and other documents
(including any application or request for approval to, and the making
of any such other further amendments of a technical and nonsubstantive
nature to any of the plans listed in the foregoing resolution as may be
required by, the Internal Revenue Service), as may be appropriate to
carry out the purpose and intent of the foregoing resolution; and
further
-2-
<PAGE> 3
MEMORANDUM OF PROPOSED AMENDMENTS
TO THE
ROCKWELL INTERNATIONAL CORPORATION
SAVINGS PLAN
Amend the Rockwell International Corporation Savings Plan (the "Plan"),
effective as of the closing date of the transactions (the "A&D Transaction")
described in the Agreement and Plan of Merger, dated as of July 31, 1996, among
Rockwell International Corporation, The Boeing Company and Boeing NA, Inc. to
provide that occurrence of the said A&D Transaction will not constitute an
event which would permit Participants to receive distributions from the Plan
and to clarify the fact that occurrence of the said A&D Transaction will cause
the Accounts of Plan Participants who, as a result of the A&D Transaction, are
no longer Employees of the Corporation or an affiliate of the Corporation, to
be fully vested and nonforfeitable.
(1) Amend the final sentence of subsection (a) of Section 5.010 to read as
follows:
Any Participant who is an A&D Employee who had less than five (5)
years of Continuous Employment as of the closing date of the A&D
Transaction shall be fully vested in the Units in his Company
Contributions Account resulting from Company Contributions made prior
thereto.
(2) Amend Section 5.040 by adding a new subsection (c) thereto, to read as
follows:
(c) Any other provision of this Plan to the contrary
notwithstanding, Plan Participants (including, but not limited
to, Participants who are A&D Employees) shall not be considered
as having terminated employment and shall not, therefore, be
eligible to receive distributions from the Plan as a result of
the occurrence of the A&D Transaction. Participants shall,
however, be permitted to make withdrawals from the Plan, if they
are otherwise eligible to do so pursuant to the provisions of
Article VI and shall be eligible for distributions from the Plan
upon occurrence of any event permitting such distributions
hereunder; provided, however, that A&D Employees shall be
eligible for distributions upon their termination of employment
from Boeing subsequent to the closing date of the A&D
Transaction.
-3-
<PAGE> 4
MEMORANDUM OF PROPOSED AMENDMENTS
TO THE
ROCKWELL RETIREMENT SAVINGS PLAN
FOR CERTAIN EMPLOYEES
Amend the Rockwell Retirement Savings Plan for Certain Employees (the "Plan"),
effective as of the closing date of the transactions (the "A&D Transaction")
described in the Agreement and Plan of Merger, dated as of July 31, 1996, among
Rockwell International Corporation, The Boeing Company and Boeing NA, Inc. to
put into effect certain of the provisions of that Agreement as they relate to
this Plan and to cause all of the Plan Accounts of all Plan Participants as of
the closing date of such A&D Transaction to be fully vested and nonforfeitable.
(1) Add a new Preamble to the Plan, such new Preamble to read as follows:
Pursuant to the provisions of the Agreement and Plan of Merger, dated
as of July 31, 1996, among Rockwell International Corporation, The
Boeing Company and Boeing NA, Inc. and certain collateral documents
related thereto (referred to collectively herein as the "A&D
Agreement"), the role of sponsor of the Plan as of the closing date
of the transaction described in such A&D Agreement (the "A&D
Transaction") will be assumed by a newly-formed Rockwell
International Corporation. In addition, the terms of the A&D
Agreement provide that individuals who, prior to the closing date of
the A&D Transaction were Eligible Employees of Rockwell International
Corporation or its Affiliated Companies pursuant to the terms of this
Plan prior to such Transaction, but who, as a result of the
Transaction, are no longer Employees or Eligible Employees hereunder
will be fully vested in their Account balances hereunder but will no
longer be permitted to make contributions or have Company
Contributions made on their behalf to the Plan following the closing
date of the A&D Transaction.
(2) Amend Article I of the Plan by re-designating the present Sections 1.010
and 1.020, respectively, as Sections 1.020 and 1.025 and by inserting new
Sections 1.005, 1.010 and 1.015, to read as follows:
1.005 "A&D AGREEMENT" means the Agreement and Plan of Merger, dated
as of July 31, 1996, among Rockwell International Corporation,
The Boeing Company and Boeing NA, Inc. and certain collateral
documents related thereto.
1.010 "A&D EMPLOYEE" means a person who, prior to the closing date
of the A&D Transaction, was an Employee or Eligible Employee
of the Company or an Affiliated Company as constituted under
the terms of this Plan prior to such Transaction, but who, as
a result of the Transaction, is no longer an Employee or
Eligible Employee of the Company or an Affiliated Company.
-4-
<PAGE> 5
1.015 "A&D TRANSACTION" means the transaction described in and
placed into effect pursuant to the A&D Agreement.
(3) Amend Article I of the Plan by adding a new Section 1.085 thereto, to
read as follows:
1.085 "BOEING" means The Boeing Company, a Delaware corporation and
its affiliates, specifically including Boeing North American,
Inc.
(4) Amend Sections 1.100 and 1.110 of the Plan in their entirety to read as
follows:
1.100 "COMMON STOCK" means the common stock, other than Class A
Stock, of Rockwell International Corporation and, as of the
closing date of the A&D Transaction, the common stock of The
Boeing Company.
1.110 "COMMON UNIT" means a Unit of Stock Fund A, Stock Fund B,
Stock Fund C or Stock Fund D attributable to Common Stock.
(5) Amend Article I of the Plan by adding a new Section 1.385 thereto, such
new Section to read as follows:
1.385 "PARTICIPANT CONTRIBUTIONS" means a Participant's Compensation
Deduction Contributions and Compensation Deferral
Contributions.
(6) Amend Article I of the Plan by re-designating the present Section 1.470
as Section 1.465 and by adding new Sections 1.470 and 1.475 to the said
Article, such new Sections to read as follows:
1.470 "STOCK FUND C" means the fund established by the Trustee
pursuant to Section 10.020(a)(vii).
1.475 "STOCK FUND D" means the fund established by the Trustee
pursuant to Section 10.020(a)(viii).
(7) Amend Section 1.500 of the Plan in its entirety to read as follows:
1.500 "TRUST FUND" means the fund, including the earnings thereon,
held by the Trustee for all contributions made by Participants
and the Company pursuant to the Plan. The Trust Fund shall be
divided into a Diversified Fund, Fixed Income Fund, Guaranteed
Return Fund, Intermediate Term Bond Fund, Stock Fund A, Stock
Fund B and, effective as of the closing date of the A&D
Transaction, Stock Fund C and Stock Fund D.
-5-
<PAGE> 6
(8) Amend subsection (b) of Section 2.020 of the Plan in its entirety to read
as follows:
(b) In addition to the elections and authorizations set forth in
(a), the Participant shall elect, as provided in Section
2.060, in which Investment Funds his Participant Contributions
and, if applicable, his Transfer Contributions are to be
invested; provided, however, that the Participant shall not be
permitted to have his Participant Contributions and Transfer
Contributions invested in Stock Funds A, C and D. Such
investments shall be elected by the Participant among the
Investment Funds in increments of five percent (5%), with the
total of the elected percentage increments equaling one
hundred percent (100%).
(9) Amend Section 2.060 of the Plan in its entirety to read as follows:
2.060 CHANGES IN INVESTMENT ELECTIONS. A Participant may make an
Investment Fund election or change any previous Investment
Fund election he has made hereunder regarding his Participant
Contributions; provided, however, that the Participant shall
not be permitted to elect to have investment of his
Participant Contributions changed to Stock Funds A, C and D.
Such an election or change of election may be made by the
Participant once per calendar year quarter and shall be
effective as of the last business day of the month in which
the election or change of election is made.
(10) Amend subsections (a) and (b) of Section 2.070 in their entirety to read
as follows:
(a) A Participant may elect once in each calendar year quarter to
have the whole or portions of the value of Units in one or
more of the Investment Funds (other than Stock Fund B and the
Guaranteed Return Fund), which Units are attributable to his
Deferral, Deduction and Transfer Contributions under Section
2.020, transferred into, and then converted to Units of, one
or more of the other Investment Funds (including Stock Fund B,
but excluding the Guaranteed Return Fund). The Unit transfers
and conversions described in the preceding sentence shall be
effected on the first day of the calendar month immediately
succeeding the month in which elected by the Participant and
shall be in increments of 5% of the value of the Participant's
Units in the transferring Fund(s).
(b) In addition to the elections available under subsection (a),
the following elections shall be available to eligible
Participants:
-6-
<PAGE> 7
(i) A Participant who has not attained age fifty-five (55) may
elect once in each calendar year, by giving the Company
notice of such election, to have ten percent (10%) of the
total value of all Units (or 100% of such total value, if
$25.00 or less) in Stock Fund B which are attributable to
the Participant's Deferral, Deduction and Transfer
Contributions transferred, in increments of five percent
(5%), into any one or more of the Investment Funds, other
than the Guaranteed Return Fund.
(ii) A Participant who is still an Employee and has attained
age fifty-five (55), but not age sixty-five (65), may
elect once in each calendar year, by giving the Company
notice of such election, to have fifty percent (50%) of
the total value of all Units (or 100% of such total value,
if $25.00 or less) in Stock Fund B which are attributable
to the Participant's Deferral, Deduction and Transfer
Contributions transferred, in increments of five percent
(5%), into any one or more of the Investment Funds, other
than the Guaranteed Return Fund; provided, however, that
the Participant may not make an election under this
paragraph (ii) during the same calendar year in which an
election has been made under paragraph (i).
(iii) A Participant who is still an Employee and has attained
age sixty-five (65) or a Retiree of any age (including,
for purposes of this paragraph, an individual who has
retired from employment with Boeing) who has elected
deferred distribution pursuant to Section 5.020(b) may
elect once each calendar year quarter to have the total
value or a portion (in 5% increments) of the total value
of all Units in Stock Funds A, B and C which are
attributable, respectively, to Company Contributions,
Participant Contributions and Transfer Contributions
transferred, in increments of five percent (5%), into any
one or more of the Investment Funds, other than the
Guaranteed Return Fund or Stock Fund B.
(iv) If, as a result of an election made pursuant to paragraph
(iii) by a Participant who is still an Employee, one
hundred percent (100%) of the Participant's interest in
Stock Fund A has been transferred to other Investment
Funds, all subsequent Company Contributions, if any, made
to the Participant's Company Contributions Account after
the effective date of such election shall be made in cash
and shall be invested in the same manner as are the
investments described in Section 2.020(c). If less than
one hundred percent (100%) of the Participant's interest
in Stock Fund A has been so transferred, such Company
Contributions shall continue to be made in the manner
described in Section 3.010(b).
-7-
<PAGE> 8
(11) Amend Section 2.070 of the Plan by re-designating current subsections
(c), (d) and (e) as subsections (e), (f) and (g), respectively; by
re-designating current subsection (f) as subsection (c); and by adding a
new subsection (d) to the said Section 2.070, such new subsection to read
as follows:
(d) A Participant with Units in Stock Fund D may elect once in each
calendar year quarter, by giving the Plan Administrator notice
of such election, to have the whole or portions of the value of
Units in Stock Fund D, which Units are attributable to the
Participant's own Participant Contributions and, if applicable,
to his Transfer Contributions transferred into, and then
converted to Units of, one or more of the Investment Funds
(excluding Stock Fund B and the Guaranteed Return Fund). The
Unit transfers and conversions described in the preceding
sentence shall be effected on the first day of the calendar
month immediately succeeding the month in which elected by the
Participant and shall be in increments of 5% of the value of the
Participant's Units in the said Stock Fund D.
(12) Amend the final sentence of Section 4.010 of the said Section, such
sentence to read as follows:
Such separate Accounts shall also contain sufficient information to
permit, with respect to Stock Funds A, B, C and D, a determination of
the number of Common Units and with respect to Stock Funds A and B, a
determination of the number of Class A Units in such Participant's
Account.
(13) Amend subsections (a) and (b) of Section 4.020 to read as follows:
(a) The interest of each Participant in the Investment Funds and in
Stock Funds A, C and D (including that part of the Diversified
Fund or the Fixed Income Fund resulting from Company
Contributions) shall be represented by Units allocated to his
Accounts. The value of each Unit shall be One Dollar ($1.00) for
the contributions deposited on behalf of each Participant prior
to the first Valuation Date following the effective date of the
particular Fund.
(b) Each contribution on behalf of a Participant to, or payment made
to a Participant from, an Investment Fund or Stock Fund A, C or
D shall result in a credit or charge to the Account representing
his interest in such Fund or contract under his Company
Contributions Account, Compensation Deferral Account,
Supplemental Deferral Account, Compensation Deduction Account,
Supplemental Deduction Account or Transfer Contribution Account,
as applicable, and shall be equal to the number of Units
contributed or paid, as the case may be.
-8-
<PAGE> 9
(14) Amend subsection (a) of Section 5.010 by adding following sentence at the
end of such subsection:
The Company Contribution Account of a Participant who, as of the
closing date of the A&D Transaction, is a member of the International
Association of Machinists and Aerospace Workers, Local Lodge No. 281
- Shreveport, Louisiana and who has less than five (5) years of
Vesting Service as of the said closing date shall be fully vested in
the Units in his Company Contributions Account resulting from Company
Contributions made prior to the said A&D Transaction.
(15) Amend in its entirety paragraph (ii) of Section 5.020(b) of the Plan to
read as follows:
(ii) The amounts which a Participant or Beneficiary (in the case of
the Participant's death) shall receive under paragraph (ii)
shall be as follows:
(A) With respect to Funds other than Stock Funds A, B, C and
D, the Participant shall receive the full dollar balance
of his Accounts in such Funds. Such balance shall be
determined in the manner provided by Section 4.040, by
reference to the value of Units in such Participant's
Accounts on the Valuation Date coinciding with or
immediately preceding:
(I) the date of the Participant's Retirement, Layoff or
termination; or
(II) in the case of the Participant's death or disability,
the date all documentation necessary to effect
distribution from the Plan is received by the Plan
Administrator.
(B) With respect to Stock Funds A, B, C and D, the dollar
balances in such Participant Accounts in such Funds as of
the Valuation Date coinciding with or immediately
preceding:
(I) such Retirement, Layoff or termination; or
(II) in the case of the Participant's death or disability,
the date all documentation necessary to effect
distribution from the Plan is received by the Plan
Administrator,
-9-
<PAGE> 10
(such balances to be determined in the manner provided by
Section 4.040 separately by reference to the Common Units and
any Class A Units in the Participant's Account on such Valuation
Date and the respective Unit values on such Valuation Date)
shall be applied to Common Stock, to the extent attributable to
Common Units, and Class A Stock, to the extent attributable to
Class A Units. The Participant shall receive shares of Common
Stock equal in number to the maximum number of whole shares of
Common Stock which could be purchased at the closing price of
Common Stock as reflected on the New York Stock Exchange --
Composite Transactions listing on such Valuation Date (or, in
the event such Valuation Date falls on a date on which for any
reason there are no trades of such stock reflected on such
listing, the last trading day preceding such Valuation Date)
with the portion of such dollar balance attributable to the
Common Units in his Account, and shares of Class A Stock equal
in number to the maximum number of whole shares of Common Stock
which could be purchased at such closing price with the portion,
if any, of such dollar balance attributable to Class A Units, in
his Account. The Participant shall be paid in cash the dollar
amounts remaining in his Accounts in Stock Funds A, B, C and D
after reduction of each such Account by the value, based on such
closing price, of the whole shares previously described. In
addition, the Participant shall be paid in cash the amount of
any cash dividends received since such Valuation Date
attributable to the number of whole shares of Common Stock and
Class A Stock distributed to him and the dollar value of any
contributions to Stock Fund A and Stock Fund B in respect of
such Participant between such Valuation Date and the date of
such Retirement, death, Layoff or termination.
(16) Amend Section 5.040 by adding a new subsection (c) thereto, to read as
follows:
(c) Any other provision of this Plan to the contrary
notwithstanding, Plan Participants (including, but not limited
to, Participants who are A&D Employees) shall not be considered
as having terminated employment and shall not, therefore, be
eligible to receive distributions from the Plan as a result of
the occurrence of the A&D Transaction. Participants shall,
however, be permitted to make withdrawals from the Plan, if they
are otherwise eligible to do so pursuant to the provisions of
Article VI and shall be eligible for distributions from the Plan
upon occurrence of any event permitting such distributions
hereunder; provided, however, that A&D Employees shall be
eligible for distributions upon their termination of employment
from Boeing subsequent to the closing date of the A&D
Transaction.
(17) Amend in its entirety paragraph (ii) of Section 5.050(a) of the Plan to
read as follows:
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<PAGE> 11
(ii) With respect to Stock Funds B, C and D, the dollar balance or
balances in such Participant's Accounts in such Funds, and with
respect to Stock Fund A the vested portion of the dollar balance
or balances in such Participant's Accounts in such Fund, both as
of the Valuation Date immediately preceding such termination
(such balance or balances to be determined in the manner
provided by Section 4.040 separately by reference to the Common
Units and any Class A Units in such Participant's Account on
such Valuation Date and the value of each such Unit on such
Valuation Date) shall each be applied to Common Stock to the
extent attributable to Common Units and Class A Stock to the
extent attributable to Class A Units. With respect to each such
Fund, the Participant shall receive shares of Common Stock equal
in number to the maximum number of whole shares of Common Stock
which could be purchased at the closing price of Common Stock as
reflected on the New York Stock Exchange -- Composite
Transactions listing on such Valuation Date (or, in the event
such Valuation Date falls on a date on which for any reason
there are no trades of such stock reflected on such listing, the
last trading day preceding such Valuation Date) with such dollar
balance (in the case of Stock Fund A, the vested portion of such
dollar balance) attributable to the Common Units in his Account
in such fund, and shares of Class A Stock equal in number to the
maximum number of whole shares of Common Stock which could be
purchased at such closing price with the portion, if any, of
such dollar balance (in the case of Stock Fund A, the vested
portion, if any, of such dollar balance) attributable to Class A
Units in his Account in such Fund. The Participant shall be paid
in cash the dollar amount remaining in his Account in Stock
Funds B, C and D and in the vested portion of his Account in
Stock Fund A after reduction by the value, based on such closing
price, of the whole shares previously described. In addition,
the Participant shall be paid in cash the amount of any cash
dividends received since such Valuation Date attributable to the
number of whole shares of Common Stock and Class A Stock
distributed to him as described in this paragraph (ii).
(18) Amend subsections (a) and (b) of Section 6.040 of the Plan in their
entirety to read as follows:
(a) Withdrawals pursuant to Sections 6.010 and 6.020 shall be taken
from the Employee's Accounts in the Investment Funds and Stock
Fund D in a pro rata fashion, based upon the relative size of
such Accounts. Any withdrawal from an Employee's Accounts in the
Guaranteed Return Fund shall be taken in reverse sequence by
withdrawing amounts from the Fund's Accounts in the contracts on
a last-in first-out basis.
(b) Notwithstanding the above subsection (a), an Employee may elect
to have any such withdrawal taken:
(i) first from the Employee's Accounts in Stock Funds B and D,
with any additional withdrawal amount to be taken on a pro
rata basis from the Employee's Accounts in the remaining
Investment Funds other than Stock Fund B; or
-11-
<PAGE> 12
(ii) first on a pro rata basis from the Employee's Accounts in
Investment Funds other than Stock Fund B, with any
additional withdrawal amount to then be taken from the
Employee's Accounts in Stock Funds B and D.
(19) Amend subsections (b) and (c) of Section 6.050 of the Plan in their
entirety to read as follows:
(b) Withdrawals pursuant to subsection (a) shall be taken from the
Participant's Fund Accounts, as elected by the Participant,
either:
(i) first from his Accounts in Stock Funds B and D, with any
additional withdrawal amount to be taken on a pro rata
basis from the Employee's Accounts in the remaining
Investment Funds other than Stock Fund B; or
(ii) first on a pro rata basis from his Accounts in Investment
Funds other than Stock Fund B, with any additional
withdrawal amount to then be taken from his Accounts in
Stock Funds B and D.
Any withdrawal from the Participant's Accounts in the Guaranteed
Return Fund shall be taken in reverse sequence by withdrawing
amounts from the Fund's Account's in the contracts on a last-in
first-out basis.
(c) Withdrawals (including those from Stock Funds B and D) shall be
in cash and for a minimum amount of $100. An Employee may not
make a request for partial withdrawal within twenty-six (26)
weeks of any prior request for partial withdrawal; provided,
however, that this limitation upon the ability of an Employee to
make a partial withdrawal (including hardship withdrawals
pursuant to the provisions of subsection (a) of this Section)
within twenty-six (26) weeks of any prior request for a partial
withdrawal shall be waived by the Plan Administrator for the
six-month period immediately following any due declaration by
the President of the United States under applicable federal law
that a particular occurrence or situation constitutes a national
disaster condition, if such partial withdrawal is requested for
a reason associated with financial need of the Employee
resulting from the effects of such condition.
-12-
<PAGE> 13
(20) Amend subsection (a) of Section 10.020 of the Plan by adding paragraphs
(vii) and (viii) thereto, to read as follows:
(vii) Stock Fund C, consisting of Common Stock of Boeing otherwise
receivable by Stock Fund A pursuant to the A&D Agreement and as
a part of the A&D Transaction; provided, however, that any
dividends or other income otherwise receivable by Stock Fund C
shall be invested by the Trustee in the same manner as are
Participant Contributions pursuant to Section 2.020(c), except
that such dividends may not be invested in Stock Fund B; and
(viii) Stock Fund D, consisting of Common Stock of Boeing otherwise
receivable by Stock Fund B pursuant to the A&D Agreement and as
a part of the A&D Transaction; provided, however, that any
dividends or other income otherwise receivable by Stock Fund D
shall be invested by the Trustee in the same manner as are
Participant Contributions pursuant to Section 2.020(c), except
that such dividends may not be invested in Stock Fund B.
(21) Amend paragraph (i) of Section 10.020(b) of the Plan in its entirety to
read as follows:
(i) The Plan Committee may from time to time direct the segregation
of all or a portion of the Investment Funds, other than the
Guaranteed Return Fund and Stock Fund B, and of Stock Funds C
and D and shall appoint Investment Managers with respect to the
portions of the Investment Funds so segregated. Any Investment
Manager so appointed shall have full discretion to direct the
Trustee with respect to the acquisition, retention, management
and disposition of the assets from time to time comprising the
Investment Manager's Account.
(22) Effective as of the closing date of the A&D Transaction, amend paragraph
(iii) of Section 10.020(b) of the Plan in its entirety to read as
follows:
(iii) The Trustee shall use all cash in Stock Fund A and Stock Fund B
to purchase Common Stock of the Company. Any Class A Stock
received by the Trustee as a Company Contribution or as a stock
dividend or other distribution on shares of Common Stock or
Class A Stock in Stock Fund A or Stock Fund B shall be retained
as such except to the extent necessary to make cash payments
from such fund as provided in the Plan. Any Boeing Common Stock
received by the Trustee as a stock dividend or other
distribution shall be sold by the Trustee on the open market.
Rights, options, or warrants offered to purchase the Company's
Common Stock or Class A Stock shall be exercised by the Trustee
in its discretion but only to the extent that there is cash
available in Stock Fund A and Stock Fund B for investment. To
the extent they are not exercised, the same shall be sold on the
open market. Rights, options, or warrants to purchase securities
of the Company or its subsidiaries or affiliates, other than the
Company's Common Stock or Class A Stock, or to purchase
securities of Boeing shall be sold by the Trustee on the open
market.
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<PAGE> 14
(23) Amend Section 10.030 in its entirety to read as follows:
10.030 DUTY OF TRUSTEE AS TO STOCK IN STOCK FUNDS.
(a) Except as otherwise provided in this Section 10.030, the duty
with respect to the voting, retention, and tendering of Common
Stock held in Stock Funds A, B, C and D and Class A Stock held
in Stock Funds A and B shall be solely that of the Trustee, to
be exercised solely in the Trustee's discretion.
(b) With respect to any matter as to which a vote of the outstanding
shares of Common Stock or Class A Stock is solicited:
(i) the Trustee shall solicit the direction in writing of each
Participant, as to the manner in which voting rights of
the Participant's vested and non-vested shares of Common
Stock held in or credited to Stock Fund A, B, C or D, or
of shares of Class A Stock held in or credited to Stock
Fund A or B, as of the record date fixed for determining
the holders of Common Stock or Class A Stock entitled to
vote on such matter are to be exercised with respect to
such matter, and the Trustee shall exercise the voting
rights of such shares with respect to such matter in
accordance with the last-dated timely written direction,
if any, of such Participant; and
(ii) the Trustee, in its sole discretion, shall exercise voting
rights of shares of Common Stock held in Stock Fund A, B,
C or D, or of shares of Class A Stock held in or credited
to Stock Fund A or B, as to which no timely direction has
been received pursuant to paragraph (i).
(c) In the event of any Tender Offer (as defined in Section 1.405):
(i) the Trustee shall solicit the direction in writing of each
Participant, as to the tendering or depositing of any
vested or non-vested shares of Common Stock held in Stock
Fund A, B, C or D, or of Common Stock issuable on
conversion of Class A Stock held in Stock Fund A or B as
of the Tender Date with respect to such Participant and,
except as limited by subsection (d) hereof, shall tender
or deposit such shares pursuant to any such Tender Offer
in accordance with the last dated timely written
direction, if any, of such Participant;
(ii) the Trustee, in its sole discretion, shall have the duty,
except as limited by subsection (d) hereof, with respect
to the retention, tendering or depositing of shares of
Common Stock held in Stock Fund A, B, C or D or of Class A
Stock held (including any shares of Common Stock issuable
on conversion of Class A Stock held) in Stock Fund A or B
as to which no timely direction has been received pursuant
to paragraph (i);
-14-
<PAGE> 15
(d) Shares of Common Stock or Class A Stock held, and any shares of
Common Stock issuable on conversion of Class A Stock held, in
Stock Funds A and B, as well as shares of Common Stock held in
Stock Funds C and D, shall not be tendered or deposited by the
Trustee pursuant to any such Tender Offer until the earlier of:
(i) immediately preceding the scheduled expiration of the
Tender Offer pursuant to which such shares are to be
tendered or deposited, or
(ii) immediately preceding the expiration of the period during
which such shares of Common Stock (including shares of
Common Stock issuable on conversion of Class A Stock) or
Class A Stock will be taken up and paid for on a pro rata
basis pursuant to such Tender Offer, or
(iii) the expiration of 30 days from the date of the Trustee's
solicitation of Participants' written direction pursuant
to subsection (c)(i).
(e) The duty with respect to the withdrawal, or other exercise of
any right of withdrawal, of shares of Common Stock held, and any
shares of Common Stock issuable on conversion of Class A Stock
held, in Stock Fund A or B, or of shares of Common Stock held in
Stock Fund C or D, which have been tendered or deposited
pursuant to any such Tender Offer shall be solely that of the
Trustee; provided that the Trustee may solicit the direction in
writing of each Participant with respect to whom any such shares
of Common Stock (including shares of Common Stock issued on
conversion of Class A Stock) or Class A Stock have been tendered
or deposited pursuant to any such Tender Offer as to the
withdrawal of, or other exercise of any right to withdraw, such
shares of Common Stock (including shares of Common Stock issued
on conversion of Class A Stock) or Class A Stock, and if such
solicitation is made, the Trustee shall act in accordance with
the last dated timely written direction, if any, of each such
Participant. As used herein, the term 'Tender Date' means the
date on which the Trustee tenders or deposits any shares of the
Common Stock (including shares of Common Stock issued on
conversion of Class A Stock) or Class A Stock either
representing the vested or non-vested interest of such
Participant in Stock Fund A or credited to the Accounts in Stock
Funds B, C and D of such Participant.
-15-
<PAGE> 1
EXHIBIT 4-g-4
AMENDMENT NO. 3
TO
RELIANCE ELECTRIC COMPANY
SAVINGS AND INVESTMENT PLAN
This Amendment No. 3 is effective as of the dates set forth in each
section or paragraph below;
WITNESSETH:
WHEREAS, effective March 1, 1978, the Company established the Reliance
Electric Company Savings and Investment Plan (the "Plan") for the benefit of
its employees; and
WHEREAS, the Company amended and restated the Plan on several
occasions, most recently effective as of January 1, 1989; and
WHEREAS, pursuant to Section 16.1 of the Plan, the Company reserved
the right to amend the Plan; and
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated
as of July 31, 1996, among Rockwell International Corporation, The Boeing
Company and Boeing, NA, Inc. and certain collateral documents related thereto
(collectively the "A&D Agreement") as of the Closing Date of the transaction
described in such A&D Agreement (the "A&D Transaction") each share of Rockwell
Stock held under the Plan will be exchanged for a share of new Rockwell Stock
and a fractional share of the common stock of The Boeing Company; and
<PAGE> 2
WHEREAS, as the result of the A&D Transaction, the Company desires to
change the Plan's investment provisions; and
WHEREAS, the Company also desires to make certain other necessary or
desirable changes to the Plan, effective as of the dates hereinafter set forth;
NOW, THEREFORE, pursuant to Section 16.1 of the Plan, the Company
hereby amends the Plan, effective as of the dates hereinafter set forth, as
follows:
(1) Section 1.01 of Article 1 of the Plan is hereby amended, effective
as of the close of the A&D Transaction, by the deletion of said Section 1.01 in
its entirety and the substitution of a new Section 1.01 to read as follows.
"1.01 "Account" means the account maintained for each Participant
which reflects separately his Basic Employee Contributions, Basic Salary
Reduction Contributions, Supplemental Salary Reduction Contributions,
Supplemental Employee Contributions, his portion of Matching Employer
Contributions, and his portion of Supplemental Employer Contributions,
investments in the investment funds offered from time to time under the
Plan, including the Exxon Fund, the Boeing Stock Funds and the Rockwell
Stock Funds, with any earnings, interest, dividends, and profits or
losses, realized or unrealized, thereon, and which also reflects any
distributions to, loans to or withdrawals by, such Participant or his
Beneficiary."
2
<PAGE> 3
(2) Section 1.11 of Article 1 of the Plan is hereby amended, effective
as of January 1, 1997, by the deletion of said Section 1.11 in its entirety and
the substitution in lieu thereof of a new Section 1.11 to read as follows:
"1.11 "Compensation" means:
(a) remuneration which is received by an Employee in cash or in kind
for the performance of services as an Employee for the Employer and which
must be reported as wages on the Employee's Form W-2 for income tax
purposes. Compensation shall be increased for salary reduction
contributions which are excluded from the taxable income of the Employee
under Code Sections 125, 402(a)(8) and 402(h)(1)(B) and shall be reduced
by all of the following amounts even if they are taxable to the Employee:
(A) expense reimbursements, expense allowances or moving expenses;
3
<PAGE> 4
(B) cash and noncash fringe benefits and welfare benefits; and
(C) deferred compensation; and
(b) in the case of an Eligible Employee, described in the second
paragraph of Section 1.15, an amount determined by the Plan Administrator,
using as a guideline to be uniformly and consistently applied, that
nondeferred remuneration which would be considered as his basic rate of
compensation if his services were performed in a similar position in the
United States for the Company, but in no event shall "Compensation", as
determined by the Plan Administrator, exceed the nondeferred remuneration
actually received by such an Eligible Employee.
Notwithstanding the foregoing, the maximum Compensation of any
Employee that can be considered for any purpose under this Plan shall be
One Hundred Fifty Thousand Dollars ($150,000), plus such adjustments for
increases in the cost of living as shall be prescribed by the Secretary of
the Treasury pursuant to Section 401(a)(17) of the Code."
(3) Section 1.28 of Article 1 of the Plan is hereby amended, effective
as of January 1, 1997, by the deletion of said Section 1.28 and the
substitution in lieu thereof of a new Section 1.28 to read as follows:
4
<PAGE> 5
"1.28 "Leased Employee" means any individual (other than a common-law
employee of an Employer) who, pursuant to an agreement between an Employer
and any leasing organization, has performed services for the Employer or
for related persons, as determined in accordance with Section 414(n)(6) of
the Code, on a substantially full-time basis for a period of at least one
(1) year; provided, however, that such services are performed under the
primary direction or control of such Employer.
Notwithstanding the foregoing, a Leased Employee shall not be
considered an Employee of an Employer if:
(a) such Leased Employee is covered under a money purchase pension
plan which provides the following:
(i) a nonintegrated employer contribution formula of at least
ten percent (10%) of a participant's Total Remuneration,
as defined in Section 1.50 hereof, together with amounts
contributed on his behalf pursuant to a salary reduction
agreement which are excludable from the employee's gross
income pursuant to Sections 125, 402(a)(8), 402(h) or
403(b) of the Code;
(ii) immediate participation in said money purchase pension
plan; and
5
<PAGE> 6
(iii) full and immediate vesting under said money purchase
pension plan; and
(b) Leased Employees do not constitute more than twenty percent (20%)
of the Employer's nonhighly compensated employees."
(4) Section 1.58 of Article 1 of the Plan is hereby amended, effective
as of January 1, 1997, by the deletion of said Section 1.58 in its entirety and
the substitution in lieu thereof of a new Section 1.58 to read as follows:
"1.58 "Highly Compensated Employee" means an Employee or a former
Employee who is highly compensated for a Plan Year as described in Section
414(q) of the Code, which is hereby incorporated by reference. A Highly
Compensated Employee is described for informational purposes herein as an
Employee during a Plan Year if either:
(a) during the preceding Plan Year, he:
(i) was at any time a five percent (5%) or more actual or
constructive owner of a member of the Employer; or
(ii) received Total Remuneration from the Employer greater
than Eighty Thousand Dollars ($80,000.00) (plus any
increase for cost of living after 1997 as determined by
the Secretary of the Treasury or his delegate) and, if
the Employer so elects, was in the "top paid group" of
Employees of the Employer for such preceding Plan Year;
or
6
<PAGE> 7
(b) during the current Plan Year, he was at any time five percent (5%)
or more actual or constructive owner of the Employer.
For purposes of determining the members of the "top paid group"
under subsection (a)(ii) above, an Employee is a member of the top
paid group for any Plan Year if for such Plan Year the Employee is a
member of a group consisting of the top paid twenty percent (20%) of
Employees of the Employer ranked on the basis of Total Remuneration
from the Employer paid during the Plan Year. In determining the
members of the top paid group, the Employer may exclude certain
employees as provided in Section 414(q) of the Code and Regulations
issued thereunder which are hereby incorporated by reference.
A Highly Compensated Former Employee is described for
informational purposes herein as a former Employee if either:
(a) such former Employee was a Highly Compensated Employee when such
former Employee terminated his employment; or
(b) such former Employee was a Highly Compensated Employee at any time
after attaining age fifty-five (55)."
7
<PAGE> 8
(5) Article 1 of the Plan is hereby amended, effective as of the
Closing Date of the A&D Transaction, by the addition at the end of said Article
1 of new Sections 1.66, 1.67, 1.68 and 1.69 to read as follows:
"1.66 "A&D Agreement" means the Agreement and Plan of Merger, dated as
of July 31, 1996, among Rockwell International Corporation, The Boeing
Company and Boeing NA, Inc. and certain collateral documents related
thereto.
1.67 "A&D Transaction" means the transaction described in and placed
into effect pursuant to the A&D Agreement.
1.68 "Boeing" means The Boeing Company, a Delaware corporation and its
affiliates, specifically including Boeing North American, Inc.
1.69 "Boeing Stock" means the common stock of Boeing."
(6) Sections 2.01, 2.02 and 2.03 of Article 2 of the Plan are hereby
amended, effective as of November 1, 1996, by the deletion of said Sections
2.01, 2.02 and 2.03 in their entireties and the substitution in lieu thereof of
new Sections 2.01, 2.02 and 2.03 to read as follows:
"2.01 Each Eligible Employee shall be so notified by his Employer and
may elect to participate by completing and delivering such forms and
taking such other action as the Plan Administrator may require within such
period as is established by the Plan Administrator and announced to
Eligible Employees.
8
<PAGE> 9
2.02 Each Eligible Employee (including an Eligible Employee whose
participation under the Plan had been suspended) who elects to participate
in the Plan, in accordance with Section 2.01, shall become a Participant
as soon as practicable following his eligibility date.
2.03 Each Eligible Employee who does not become a Participant when
first eligible (including an Eligible Employee whose participation under
the Plan has been suspended) may at any time after his eligibility date
elect to become a Participant as soon as practicable following the date of
his election to participate by completing and delivering such forms and
taking such other action as the Plan Administrator may require, in
accordance with Section 2.01."
(7) Sections 5.03, 5.04 and 5.05 of Article 5 of the Plan are hereby
amended, effective as of January 1, 1997, by the deletion of said Sections
5.03, 5.04 and 5.05 in their entireties and the substitution in lieu thereof of
new Sections 5.03, 5.04 and 5.05 to read as follows:
9
<PAGE> 10
"5.03 The contributions made for a Plan Year pursuant to a
Participant's election under Section 3.01 hereof shall be limited so that
the average deferral percentage for the Participants who are highly
compensated Participants shall not exceed an amount determined based upon
the average deferral percentage for the previous Plan Year for the
Participants who are not highly compensated Participants during the
previous Plan Year, as follows:
<TABLE>
<CAPTION>
(A) (B)
Average Deferral Percentage Current Plan Year Limit
For Previous Plan Year For on Average Deferral
Participants who are not Highly Percentage for Highly
Compensated Compensated Participants
----------- ------------------------
<S> <C>
Less than 2% 2 times Column (A)
2% or more but less than 8% Column (A) plus 2%
8% or more 1.25 times Column (A)
</TABLE>
For purposes of the foregoing, the "deferral percentage" for a Participant
for any Plan Year shall equal a fraction, the numerator of which shall
equal the total of the contributions made on his behalf for such Plan Year
pursuant to Section 3.01 hereof and the denominator of which shall equal
his Compensation for such Plan Year. In addition, all Participant
contributions made pursuant to Code Section 401(k) under one or more plans
that are aggregated with the Plan for purposes of Code Sections 401(a)(4)
and 410(b) (other than Section 410(b)(2)(A)(ii)) shall be treated as
though they were made under the Plan.
10
<PAGE> 11
5.04 The contributions made for the current Plan Year as Matching
Employer Contributions pursuant to Article 4 hereof, together with
contributions made to the Plan for the current Plan Year by Participants
pursuant to Section 3.02 hereof, shall be limited so that the average
contribution percentage for the Participants who are highly compensated
Participants shall not exceed an amount determined based upon the average
contribution percentage for the previous Plan Year by the Participants who
were not highly compensated participants during the previous Plan Year in
accordance with the table set forth in Section 5.03 hereof. For purposes
of the foregoing, the "contribution percentage" for a Participant for any
Plan Year shall equal a fraction, the numerator of which shall equal the
fair market value of the Company Stock and/or the amount of money
contributed on his
12
<PAGE> 12
behalf for such Plan Year as Matching Employer Contributions pursuant to
Article 4 hereof, together with amounts contributed by the Participant
pursuant to Section 3.02 hereof, and the denominator of which shall equal
his Compensation for such Plan Year. All other terms used in this Section
5.04 shall have the meanings set forth in Section 5.03 hereof. If, for any
Plan Year, the Plan satisfies the requirements of Section 5.03 hereof, then
the Employer may elect, in such manner as the Secretary of the Treasury or
his delegate may provide, to take into account as additional amounts for
purposes of this Section 5.04, amounts contributed to the Plan pursuant to
a Participant's election under Section 3.01 hereof. In addition, all
contributions made pursuant to Code Section 401(m) under one or more plans
that are aggregated with the Plan for purposes of Code Sections 401(a)(4)
and 410(b) (other than Section 410(b)(2)(A)(ii)) shall be treated as though
they were made under the Plan.
5.05 The contributions made for a Plan Year pursuant to a
Participant's election under Section 3.01 plus the Matching Employer
Contributions and Supplemental Employee Contributions made for such Plan
Year shall be limited so that the sum of the average deferral percentage
and the average contribution percentage for the Participants who are
highly compensated Participants does not exceed the "aggregate limit." The
"aggregate limit" is equal to the greater of (a) and (b) below where:
12
<PAGE> 13
(a) equals the sum of (i) and (ii) below, where:
(i) equals 1.25 times the greater of the deferral percentage
or the contribution percentage for the previous Plan Year
for the Participants who are non-highly compensated
employees; and
(ii) equals two (2) percentage points plus the lesser of the
deferral percentage or the contribution percentage for
the previous Plan Year for the Participants who are
non-highly compensated employees. In no event, however,
shall this amount exceed twice the lesser of the deferral
percentage or the contribution percentage for previous
Plan Year for the Participants who are non-highly
compensated employees; and
(b) equals the sum of (i) and (ii) below, where:
(i) equals 1.25 times the lesser of the deferral percentage
or the contribution percentage for the previous Plan Year
for the Participants who are non-highly compensated
employees; and
(ii) equals two (2) percentage points plus the greater of the
deferral percentage or the contribution percentage for
the previous Plan Year for the Participants who are
non-highly compensated employees. In no event, however,
shall this amount exceed twice the greater of the
deferral percentage or the contribution percentage for
the previous Plan Year for the Participants who are
non-highly compensated employees."
13
<PAGE> 14
(8) Section 6.01 of Article 6 of the Plan is hereby amended, effective
as of the Closing Date of the A&D Transaction, by the addition of two new Funds
to the first paragraph of said Section 6.01 which shall be described as
follows:
"(9) Boeing Stock Fund A, which shall consist of all
Boeing Stock received by the Plan in connection with
the A&D Transaction and which relate to Matching
Employer Contributions and Supplemental Matching
Employer Contributions previously invested in
Rockwell Stock Fund A. No future Contributions to
the Plan will be invested in Boeing Stock Fund A.
(10) Boeing Stock Fund B, which shall consist of all
Boeing Stock received by the Plan in connection with
the A&D Transaction and which relate to
contributions other than Matching Employer
Contributions and Supplemental Matching Employer
Contributions previously invested in Rockwell Stock
Fund B. No future Contributions to the Plan will be
invested in Boeing Stock Fund B."
14
<PAGE> 15
(9) Section 6.04 of Article 6 of the Plan is hereby amended, effective
as of the Closing Date of the A&D Transaction, by the addition at the end of
the first paragraph thereof of a new sentence to read as follows:
"Effective as of the Closing Date of the A&D Transaction, a
Participant, Inactive Participant or Former Participant may
direct a change with respect to the existing balance of his
Account in Fund A, Fund B (subject to the subsequent
provisions of this Section 6.04), Fund C, Fund D, Fund E
(subject to the subsequent provisions of this Section 6.04),
the Exxon Stock Fund, Rockwell Stock Fund B (subject to the
subsequent provisions of this Section 6.04), Boeing Stock
Fund A (subject to the subsequent provisions of this Section
6.04) or Boeing Stock Fund B, (subject to the subsequent
provisions of this Section 6.04), in accordance with the
rules and procedures established by the Plan Administrator,
uniformly and nondiscriminatorily applied."
15
<PAGE> 16
(10) Section 6.06 of Article 6 of the Plan is hereby amended,
effective as of the Closing Date of the A&D Transaction, by the addition at the
end thereof of a new sentence to read as follows:
"Cash dividends and the cash proceeds of any other distributions received
on Boeing Stock held in Boeing Stock Fund A or Boeing Stock Fund B shall be
invested in Fund B."
(11) Article 6 of the Plan is hereby amended, effective as of the
Closing Date of the A&D Transaction, by the addition of a new Section 6.12 to
read as follows and by the renumbering of current Section 6.12 as Section 6.13:
"6.12 Except as otherwise provided in this Section 6.12, the duty with
respect to the voting, retention and tendering of Boeing Stock held in
Boeing Stock Fund A or Boeing Stock Fund B shall be solely that of the
Trustee, to be exercised solely in the Trustee's discretion.
16
<PAGE> 17
With respect to any matter as to which a vote of the outstanding
shares of Boeing Stock is solicited:
(i) the Trustee shall solicit the direction in writing of
each Participant, as to the manner in which voting rights
of the Participant's vested and non-vested shares of
Boeing Stock held in or credited to Boeing Stock Fund A
or Boeing Stock Fund B as of the record date fixed for
determining the holders of Boeing Stock entitled to vote
on such matter are to be exercised with respect to such
matter, and the Trustee shall exercise the voting rights
of such shares with respect to such matter in accordance
with the last-dated timely written direction, if any, of
such Participant; and
(ii) the Trustee, in its sole discretion, shall exercise
voting rights of shares of Boeing Stock held in Boeing
Stock Fund A or Boeing Stock Fund B as to which no timely
direction has been received pursuant to paragraph (i).
In the event of any Tender Offer:
17
<PAGE> 18
(i) the Trustee shall solicit the direction in writing of
each Participant, as to the tendering or depositing of
any vested or non-vested shares of Boeing Stock held in
Boeing Stock Fund A or Boeing Stock Fund B as of the
Tender Date with respect to such Participant or have been
credited as of such Tender Date to the Accounts in Boeing
Stock Fund B of such Participant, and, except as limited
below, the Trustee shall tender or deposit such shares
pursuant to any such Tender Offer in accordance with the
last-dated timely written direction, if any, of such
Participant; and
(ii) the Trustee shall, in its sole discretion, have the duty,
except as limited below, with respect to the retention,
tendering or depositing of shares of Boeing Stock held in
Boeing Stock Fund A or Boeing Stock Fund B as to which no
timely direction in writing has been received pursuant to
paragraph (i).
18
<PAGE> 19
Shares of Boeing Stock held in Boeing Stock Fund A or Boeing Stock
Fund B shall not be tendered or deposited by the Trustee pursuant to any
such Tender Offer until the earliest of:
(i) the date immediately preceding the scheduled expiration
of the Tender Offer pursuant to which such shares are to
be tendered or deposited, or
(ii) the date immediately preceding the expiration of the
period during which such shares of Boeing Stock will be
taken up and paid for on a pro rata basis pursuant to
such Tender Offer, or
(iii) the expiration of 30 days from the date of the Trustee's
solicitation of the Participant's written direction
pursuant to this Section 6.12.
The duty with respect to the withdrawing of, or other exercise of any
right to withdraw, shares of Boeing Stock held in Boeing Stock Fund A or
Boeing Stock Fund B which have been tendered or deposited pursuant to any
such Tender Offer shall be solely that of the Trustee, provided that the
Trustee may solicit the direction in writing of each Participant with
respect to whom any such shares of Boeing Stock have been tendered or
deposited pursuant to any such Tender Offer as to the withdrawing of, or
other exercise of any right to withdraw, such shares of Boeing Stock and,
if such solicitation is made, the Trustee shall act in accordance with the
last dated timely written direction, if any, of each such Participant.
19
<PAGE> 20
As used herein, the term "Tender Date" means the date on which the
Trustee tenders or deposits any shares of the Boeing Stock either
representing the vested or non-vested interest of such Participant in
Boeing Stock Fund A or credited to the Accounts in Boeing Stock Fund B of
such Participant."
(12) Section 7.01 of Article 7 of the Plan is hereby amended,
effective as of the Closing Date of the A&D Transaction, by the deletion of
said Section 7.01 in its entirety and the substitution in lieu thereof of a new
Section 7.01 to read as follows:
20
<PAGE> 21
"7.01 The Plan Administrator shall determine the value of each
Participant's Account based on the fair market value of Funds A, B, C, D,
E, the Exxon Stock Fund, Rockwell Stock Fund A, Rockwell Stock Fund B,
Boeing Stock Fund A and Boeing Stock Fund B not less frequently than as of
the end of each month."
(13) Section 7.03 of Article 7 of the Plan is hereby amended,
effective as of the Closing Date of the A&D Transaction, by the deletion of
said Section 7.03 in its entirety and the substitution in lieu thereof of a new
Section 7.03 to read as follows:
"7.03 As soon as practicable following the end of each Plan Year, and
at such other times as the Plan Administrator deems appropriate, the Plan
Administrator shall deliver or mail to each Participant, Inactive
Participant, Former Participant and Beneficiary who is entitled to receive
a benefit under the Plan a statement setting forth the fair market value
of his Account in Funds A, B, C, D, E, the Exxon Stock Fund, Rockwell
Stock Fund A, Rockwell Stock Fund B, Boeing Stock Fund A and Boeing Stock
Fund B as of the end of such Plan Year."
21
<PAGE> 22
(14) Section 9.01 of Article 9 of the Plan is hereby amended,
effective as of October 1, 1996, by the deletion of said Section 9.01 in its
entirety and the substitution in lieu thereof of a new Section 9.01 to read as
follows:
"9.01 Except as provided in Section 9.08, a Participant who incurs a
Severance from Service shall receive a distribution of his Vested Interest
in a single lump sum on any date following his Severance from Service Date
as the Participant shall elect, provided that such date occurs not earlier
than an administratively reasonable period of time following the Plan
Administrator's receipt of his request for distribution.
Notwithstanding the foregoing, if the value of a Participant's Account
does not exceed and at the time of any prior distribution did not exceed
$3,500, distribution shall be made to such Participant in the form of a
single lump sum distribution as soon as practicable following his
retirement or Severance from Service Date."
22
<PAGE> 23
(15) Section 9.03 of Article 9 of the Plan is hereby amended,
effective as of the Closing Date of the A&D Transaction, by the deletion of
said Section 9.03 in its entirety and the substitution in lieu thereof of a new
Section 9.03 to read as follows:
"9.03 Except with respect to Rockwell Stock Fund A, Rockwell Stock
Fund B, Boeing Stock Fund A and Boeing Stock Fund B, a Participant
generally shall receive payment of his Vested Interest in the form of
cash; provided, however, that if sufficient cash is not available to make
cash distributions to all similarly situated Participants who have a
Vested Interest in the Exxon Fund, the Plan Administrator shall have the
discretion to direct the Trustee to make distributions to such
Participants in the form of whole shares of Exxon Stock, plus cash for the
value of any fractional shares.
23
<PAGE> 24
With respect to Rockwell Stock Fund A and Rockwell Stock Fund B, a
Participant shall receive payment of his Vested Interest in such Funds in
the form of Common Stock equal in number to the maximum number of whole
shares of Common Stock which could be purchased at the closing price of
Common Stock as reflected on the New York Stock Exchange -- Composite
Transactions listing as of the Valuation Date, plus cash for the value of
any fractional shares. In addition, the Participant shall be paid in cash
the amount of any cash dividends received since the last Valuation Date
attributable to the number of whole shares of Common Stock distributable to
him as described in this Section 9.03 and the dollar value of any
contributions to Rockwell Stock Fund A and Rockwell Stock Fund B in respect
of such Participant between the last Valuation Date and the date of
payment. With respect to Boeing Stock Fund A and Boeing Stock Fund B, a
Participant shall receive payment of his Vested Interest in such Funds in
the form of Boeing Stock equal in number to the maximum number of whole
shares of Boeing Stock which could be purchased at the closing price of
Boeing Stock as reflected on the New York Stock Exchange -- Composite
Transactions listing as of the Valuation Date, plus cash for the value of
any fractional shares. In addition, any Participant may elect in writing to
receive that portion of his Vested Interest in the Exxon Fund in whole
shares of Exxon Stock, plus cash for the value of any fractional shares."
24
<PAGE> 25
(16) Section 10.01 of Article 10 of the Plan is hereby amended,
effective as of the Closing Date of the A&D Transaction, by the deletion of
paragraphs (c), (d) and (e) of said Section 10.01 in their entireties and the
substitution in lieu thereof of new paragraphs (c), (d) and (e) to read as
follows:
"(c) A Participant or Inactive Participant not described in (a) above
may withdraw his Vested Interest attributable to Matching
Employer Contributions (other than Matching Employer
Contributions invested in Rockwell Stock Fund A and Boeing Stock
Fund A) provided that the amounts to be withdrawn were
contributed to the Plan at least 24 months prior to the date of
withdrawal. Notwithstanding the foregoing, in the event a
Participant or Inactive Participant not described in (a) above
has been a Participant in the Plan for a five year period, such
Participant or Inactive Participant may withdraw 100% of his
Vested Interest attributable to Matching Employer Contributions
(other than Matching Employer Contributions invested in Rockwell
Stock Fund A and Boeing Stock Fund A).
25
<PAGE> 26
(d) In the case of financial hardship, a Participant or Inactive
Participant, even though described in (a) above, may withdraw his
Vested Interest attributable to Matching Employer Contributions
as described in Section 10.01(c) above (but not including
Matching Employer Contributions invested in Rockwell Stock Fund A
and Boeing Stock Fund A) and that part of the balance of his
Account (including earnings on his Salary Reduction Contributions
through December 31,
26
<PAGE> 27
1988) which is attributable to Salary Reduction Contributions. For the
purpose of this paragraph, a withdrawal will be on account of financial
hardship if the withdrawal is necessary in light of an immediate and
heavy financial need of the Participant or Inactive Participant and is
necessary to satisfy such financial need. Such withdrawal based upon
financial hardship cannot exceed the amount required to meet the
financial need created by the hardship. The determination of the
existence of financial hardship and the amount required to meet the
financial need shall take into account all non-hardship distributions
and nontaxable loans available under the Plan and other tax qualified
plans of the Employer and shall be made in accordance with the hardship
provisions of Section 401(k) of the Code and with uniform and
nondiscriminatory standards established by the Plan Administrator. In
accordance with the foregoing, the Plan Administrator has established
that a Participant or Inactive Participant will be deemed to have an
immediate and heavy financial need and, therefore, will qualify for a
financial hardship withdrawal if the purpose of the withdrawal is on
account of the following:
27
<PAGE> 28
(i) medical expenses described in Section 213(d) of the Code
incurred by the Participant, the Inactive Participant or
such individual's spouse, or any dependents of the
Participant or Inactive Participant (as defined in
Section 152 of the Code) or amounts necessary for such
persons to obtain medical care described in Section
213(d);
(ii) purchase of a principal residence for the Participant or
Inactive Participant (excluding mortgage payments);
(iii) tuition, related educational fees, and room and board
expenses for the next twelve (12) months of
post-secondary education for the Participant, the
Inactive Participant, or such individual's spouse,
children, or dependents (as defined in Section 152 of the
Code); or
28
<PAGE> 29
(iv) payment necessary to prevent the eviction of the
Participant or Inactive Participant from his principal
residence or foreclosure on the mortgage of the
Participant's or Inactive Participant's principal
residence.
(e) Withdrawals of a Vested Interest, to the extent permitted, shall
be made only in the following order of priority, and only after
the funds of a higher priority have been completely withdrawn
shall funds of the next following priority be withdrawn:
(i) Supplemental Employee Contributions,
(ii) Basic Employee Contributions,
29
<PAGE> 30
(iii) Earnings credited to Supplemental Employee Contributions
and Basic Employee Contributions,
(iv) Matching Employer Contributions (other than Matching
Employer Contributions made pursuant to Section 4.09),
together with earnings thereon, if any,
(v) Salary Reduction Contributions and Matching Employer
Contributions made pursuant to Section 4.09,
(vi) Earnings credited to Salary Reduction Contributions and
Matching Employer Contributions made pursuant to Section
4.09,
(vii) Subsequent to a determination of the order of priority
for purposes of withdrawals of a Vested Interest as
determined in subsection (i) through subsection (vi)
above, withdrawals of a Vested Interest shall be made
only in the following order of priority from Funds A, B,
C, D, E, the Exxon Stock Fund, Rockwell Stock Fund A (to
the extent permitted), Rockwell Stock Fund B, Boeing
Stock Fund A (to the extent permitted) and Boeing Stock
Fund B as follows:
30
<PAGE> 31
1. Fund B - Interest Accumulation Fund
2. Boeing Stock Fund B
3. Boeing Stock Fund A
4. Exxon Stock Fund
5. Fund E - U.S. Government Fund
6. Fund A - Aetna Variable Fund Accumulation Account
7. Fund C - Merrill Lynch Basic Value Fund
8. Fund D - Equity Index Fund of the General Employee Benefit
Trust of Bankers Trust Company
9. Rockwell Stock Fund B
10. Rockwell Stock Fund A"
(17) Section 11.01 of Article 11 of the Plan is hereby amended,
effective as of November 1, 1996, by the deletion of paragraph (a) of said
Section 11.01 in its entirety and the substitution in lieu thereof of a new
paragraph (a) to read as follows:
31
<PAGE> 32
"(a) An application for a loan shall be made to the Plan Administrator
or its agent, whose action thereon shall be final;"
(18) Section 11.01 of Article 11 of the Plan is hereby further
amended, effective as of November 1, 1996, by the deletion of paragraph (e) of
said Section 11.01 in its entirety and the relettering of the remaining
paragraphs of Section 11.01 as appropriate.
(19) Section 11.01 of Article 11 of the Plan is hereby further
amended, effective as of November 1, 1996, by the deletion of paragraph (e) of
said Section 11.01 (as relettered) in its entirety and the substitution in lieu
thereof of a new paragraph (e) to read as follows:
"(e) the term of any loan shall be arrived at by mutual agreement
between the borrower and the Plan Administrator or its agent and
shall not exceed fifty-six (56) months, unless the proceeds of
such loan are to be used to acquire any dwelling unit which
within a reasonable time is to be used as the borrower's
principal residence, in which case, the term of the loan shall
not exceed one hundred twenty (120) months. All loans shall
provide for the substantially level amortization of the loan,
with payments made not less frequently than quarterly, over the
term of the loan;"
32
<PAGE> 33
(20) Section 11.01 of Article 11 of the Plan is hereby further
amended, effective as of November 1, 1996, by the deletion of paragraph (h) of
said Section 11.01 (as relettered) in its entirety and the substitution in lieu
thereof of a new paragraph (h) to read as follows:
"(h) except as provided below, each loan shall be treated as a
separate investment of the funds credited to such borrower's
Account and the Plan Administrator or its agent shall reduce such
borrower's Account in the following order of priority:
1. Fund B - Interest Accumulation Fund
2. Boeing Stock Fund B
3. Exxon Stock Fund
4. Fund E - U.S. Government Fund
5. Fund A - Aetna Variable Fund Accumulation
Account
33
<PAGE> 34
6. Fund C - Merrill Lynch Basic Value Fund
7. Fund D - Equity Index Fund of the General
Employee Benefit Trust of Bankers Trust
Company
8. Rockwell Stock Fund B
Payments by a borrower on any such loan shall be
credited to such borrower's Account in the Funds
listed above in the same proportions as the
borrower's current investment option election with
respect to such Funds at the end of the month in
which loan payments are made;"
34
<PAGE> 1
EXHIBIT 4-h-1
ROCKWELL INTERNATIONAL CORPORATION
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS
ON NOVEMBER 6, 1996
- ASSIGNMENT AND ASSUMPTION OF COMPENSATION AND EMPLOYEE BENEFIT PLANS
RESOLVED, that the proposed assignment to and assumption by New
Rockwell of the compensation and employee benefit plans of this Corporation set
forth below, together with any and all sub-plans, agreements, undertakings or
other liabilities thereunder, in connection with and effective upon
consummation of the Contribution (as defined in the Merger Agreement), be, and
they hereby are, authorized and approved by this Corporation on its own behalf
and as the sole shareowner of New Rockwell:
1979 Stock Plan for Key Executives
1988 Long-Term Incentives Plan
1995 Long-Term Incentives Plan
Directors Stock Plan
Incentive Compensation Plan
Deferred Compensation Plan
Annual Incentive Compensation Plan
for Senior Executive Officers
Deferred Compensation Policy for Non-Employee Directors
Retirement Policy for Certain Former Directors
Rockwell International Corporation Savings Plan
Rockwell International Corporation Supplemental
Savings Plan for Highly Compensated Employees
Rockwell International Corporation Excess Benefit
Savings Plan
Rockwell Retirement Savings Plan for Certain Employees
Rockwell International Corporation Asheville Employees
Retirement Savings Plan -- Truck Axle Division
Rockwell International Corporation York Employees
Retirement Savings Plan -- Truck Axle Division
Rockwell International Corporation Retirement Plan
for Hourly Employees -- Gordonsville, Tennessee
Rockwell International Corporation Gordonsville,
Tennessee Employees Retirement Savings Plan
<PAGE> 1
EXHIBIT 4-h-2
NEW ROCKWELL INTERNATIONAL CORPORATION
PROPOSED RESOLUTIONS FOR ADOPTION
AT DECEMBER 4, 1996 BOARD MEETING
- - APPROVAL OF ASSUMPTION AND ADOPTION OF COMPENSATION AND BENEFIT PLANS
RESOLVED, that, this Corporation's proposed succession to, and
assumption of, sponsorship, effective as of the Time of Contribution,
of those pension benefit plans listed below which were sponsored by
Rockwell immediately prior to the Time of Contribution, together with
any and all sub-plans, agreements, undertakings or other liabilities
thereunder be, and they hereby are, authorized and approved:
Rockwell International Corporation Savings Plan
Rockwell Retirement Savings Plan for Certain Employees
Rockwell International Corporation Asheville Employees
Retirement Savings Plan -- Truck Axle Division
Rockwell International Corporation York Employees
Retirement Savings Plan -- Truck Axle Division
Rockwell International Corporation Retirement Plan for
Hourly Employees -- Gordonsville, Tennessee
Rockwell International Corporation Gordonsville, Tennessee
Employees Retirement Savings Plan
and further
RESOLVED, that this Corporation's Employee Benefit Plan
Committee (together with its delegates, the "EB Committee") be, and it
hereby is, authorized and directed to take such actions as it deems
appropriate to assume sponsorship of the trusts associated with the
plans listed in the immediately preceding resolution, including but not
limited to acceptance of any and all assets of the said trusts and
assumption of any trust agreements and investment manager agreements
connected with the said trusts, as of the Time of Contribution,
pursuant to the Merger Agreement and the Distribution Agreement (as
defined in the Merger Agreement).
<PAGE> 1
EXHIBIT 5-a
November 27, 1996
Rockwell International Corporation
2201 Seal Beach Boulevard
Seal Beach, CA 90740
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of New Rockwell
International Corporation, a Delaware corporation (the "Company"), and am
delivering this opinion in connection with the filing on this date by the
Company of a Registration Statement on Form S-8 (the "Registration Statement")
registering under the Securities Act of 1933, as amended (the "Act"), certain
shares of Common Stock, par value $1.00 per share (including the associated
Preferred Share Purchase Rights) of the Company (the "Common Shares") that may
be issued in accordance with the Rockwell International Corporation Savings
Plan, Rockwell Retirement Savings Plan for Certain Employees, Allen-Bradley
Savings and Investment Plan for Salaried Employees, Allen-Bradley Savings and
Investment Plan for Hourly Employees and Reliance Electric Company Savings and
Investment Plan (collectively, the "Plans").
I have examined such documents, records and matters of law as I have deemed
necessary as a basis for the opinions hereinafter expressed.
On the basis of the foregoing, and having regard for legal considerations that
I deem relevant, I am of the opinion that when the Registration Statement
becomes effective under the Act, any Common Shares issued and delivered in
accordance with the Plans will, when so delivered, be legally issued, fully
paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
I express no opinion herein as to any laws other than the General Corporation
Law of the State of Delaware and the Federal laws of the United States.
Very truly yours,
/s/ William J. Calise, Jr.
