As filed with the Securities and Registration No. _____
Exchange Commission on September 3, 1996
FORM S-8
Registration Statement under the Securities Act of 1933
FLEMING COMPANIES, INC.
(Exact name of registrant as specified in its charter)
Oklahoma 48-0222760
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6301 Waterford Boulevard
P. O. Box 26647
Oklahoma City, Oklahoma 73126-0647
(Address of Principal Executive Office) (Zip Code)
FLEMING COMPANIES, INC.
1996 STOCK INCENTIVE PLAN
(Full title of the plan)
Copies to:
David R. Almond Lenore T. Graham, Esq.
Senior Vice President, General McAfee & Taft
Counsel and Secretary A Professional Corporation
Fleming Companies, Inc. Tenth Floor
6301 Waterford Boulevard Two Leadership Square
P. O. Box 26647 Oklahoma City, Oklahoma 73102
Oklahoma City, Oklahoma 73126-0647 (405) 235-9621
(Name and address of agent
for service)
405/840-7200
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
- ------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registra-
registered registered per unit(1) price(1) tion fee
- ------------------------------------------------------------------
Common Stock, 1,200,000 (3) $15.57 $18,675,000 $6,440
$2.50 par value
(2)
- ------------------------------------------------------------------
(1) Estimated pursuant to Rules 457(c) and (h) of the Securities
Act of 1933, as amended, solely for the purpose of
calculating the registration fee and based upon the average
of the high and low prices of Fleming Companies, Inc. Common
Stock as reported by the New York Stock Exchange on August
27, 1996.
(2) Each share of Common Stock also includes the associated
Common Stock purchase rights (the "Rights"). Prior to the
occurrence of certain events, the Rights will not be
exercisable or evidenced separately from the Common Stock.
No additional consideration will be received for the Rights.
(3) The number of shares of Common Stock stated above is the
aggregate number of such shares which may be issued on the
exercise of options or the award of restricted stock under
the Fleming Companies, Inc. 1996 Stock Incentive Plan (the
"Plan") registered under this Registration Statement. The
maximum number of shares which may be issued under the Plan
cannot presently be determined since adjustments in the
number of shares may be made in the event of stock splits,
stock dividends, or other changes in the corporate structure
or shares as specified in the Plan. Accordingly, this
Registration Statement covers, in addition to the number of
shares of Common Stock stated above, an indeterminate number
of shares, which by reason of any of such event may become
subject to issuance under the Plan.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant incorporates herein by reference the fol-
lowing documents filed with the Securities and Exchange Commission
(the "Commission"):
(a) The registrant's Annual Report on Form 10-K for the
fiscal year ended December 30, 1995 filed with the Commission on
March 29, 1996, and as amended on Form 10-K/A on April 15, 1996.
(b) The registrant's Quarterly Reports on Form 10-Q for
the period ended April 20, 1996 filed with the Commission on May
31, 1996, and the period ended July 13, 1996, filed with the
Commission on August 27, 1996.
(c) The Registrant's current reports on Form 8-K dated
January 16, 1996, March 20, 1996, March 21, 1996, March 28, 1996
and June 24, 1996, respectively.
(d) The description of Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as amended, filed
under the Exchange Act (File No. 1-8140).
All reports hereafter filed by the registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all of the shares of the registrant's Common
Stock covered by this registration statement have been sold or
which de-registers all such shares then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 1031 of the Oklahoma General Corporation Act,
under which act the registrant is incorporated, authorizes the
indemnification of officers and directors in certain circum-
stances. Article Thirteenth of the registrant's Certificate of
Incorporation, as well as Article 8 of the registrant's Bylaws,
provide indemnification of directors, officers and agents to the
extent permitted by Oklahoma General Corporation Act. These
provisions may be sufficiently broad to indemnify such persons for
liabilities under the Securities Act of 1933. In addition,
Article Thirteenth of the registrant's Certificate of Incorpora-
tion permits the exculpation of a director for monetary damages
for breach of fiduciary duty as a director. In addition, the
registrant maintains insurance policies which insure its officers
and directors against certain liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Certificate of Incorporation
4.2 Bylaws
4.3 Rights Agreement dated as of February 27, 1996 between
Fleming Companies, Inc. and Liberty Bank and Trust
Company of Oklahoma City, N.A. effective as of the close
of business on July 6, 1996 which includes as Exhibit A
the Certificate of Designations and Exhibit B to form of
Right Certificate (incorporated by reference to Exhibit
4.0 to Form 8-K dated February 27, 1996).
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of McAfee & Taft A Professional Corporation.
99 1996 Fleming Companies, Inc. Stock Option Plan dated
February 27, 1996 (incorporated by reference to Exhibit
A to Proxy Statement for year ended December 30, 1995).
Item 9. Undertakings.
The undersigned registrant 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 the registration state-
ment (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the high or low end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registra-
tion statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purposes of determining any liability
under the Securities Act of 1933, each such post-effective amend-
ment 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.
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
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.
Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the fore-
going provisions, or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefor, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant 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, the registrant 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 Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
THE REGISTRANT. 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 require-
ments 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 Oklahoma City, State of Oklahoma
on September 3, 1996.
FLEMING COMPANIES, INC.
By ROBERT E. STAUTH
Robert E. Stauth, Chairman
and Chief Executive Officer
<PAGE>
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
ROBERT E. STAUTH Chairman, Chief Executive ]
Robert E. Stauth Officer and Director ]
]
HARRY L. WINN, JR. Executive Vice President ]
Harry L. Winn, Jr. and Chief Financial Officer ]
]
KEVIN J. TWOMEY Vice President and ]
Kevin J. Twomey Controller ]
]
ARCHIE R. DYKES Director ]
Archie R. Dykes ]
]
CAROL B. HALLETT Director ]
Carol B. Hallett ]
]
LAURENCE M. JONES Director ] September 3, 1996
Laurence M. Jones ]
]
EDWARD C. JOULLIAN III Director ]
Edward C. Joullian III ]
]
HOWARD H. LEACH Director ]
Howard H. Leach ]
]
]
John A. McMillan Director ]
]
GUY A. OSBORN Director ]
Guy A. Osborn ]
]
]
Jack W. Baker Director ]
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No.
- -------
<S> <C> <C>
4.1 Certificate of Incorporation Filed herewith
electronically
4.2 Bylaws Filed herewith
electronically
23.1 Consent of Deloitte & Touche LLP Filed herewith
electronically
23.2 Consent of McAfee & Taft A Filed herewith
Professional Corporation electronically
</TABLE>
RESTATED CERTIFICATE OF INCORPORATION
OF
FLEMING COMPANIES, INC.
To The Secretary of State of Oklahoma:
Fleming Companies, Inc., an Oklahoma corporation, does
hereby certify:
FIRST: that the corporation was originally incorporated
on February 3, 1981, under the name "Fleming Merger, Inc."
SECOND: that the corporation's Board of Directors, by
resolutions adopted at a meeting held on May 1, 1991, did adopt the
following as the corporation's Restated Certificate of
Incorporation:
ARTICLE ONE
The name of the corporation is:
FLEMING COMPANIES, INC.
ARTICLE TWO
The address of its registered office in the State of
Oklahoma is 735 First National Building, Oklahoma City, Oklahoma
73102, and the name of its registered agent at such address is The
Corporation Company.
ARTICLE THREE
The period of existence of the corporation shall be of
perpetual duration.
ARTICLE FOUR
The purposes for which the corporation is formed are:
To engage in the business of procuring and distributing
food and related products, and to purchase, buy, sell, exchange,
produce, manufacture, process, export, import, handle, store,
distribute, and otherwise generally deal in any and all articles of
food, food products, and food supplies of all kinds, both at
wholesale and retail, and acquire, construct, maintain, operate,
buy, sell, and deal with stores selling such goods, wares, and
merchandise; to acquire, construct, establish, maintain, operate,
or sell or dispose of factories, plants, warehouses, machinery and
equipment, markets, stores, and gathering and delivery routes and
systems for such purposes.
To engage in any lawful act or activity and to pursue any
lawful purpose for which a corporation may be formed under the
Business Corporation Act of Oklahoma.
To act in and conduct any lawful business for profit at
such places and in such manner as its directors shall determine,
and in so doing enter into any general, special or limited
partnership as a general, special or limited partner; or into any
association or arrangement for sharing profits, union of interest,
reciprocal concessions or transactions capable of being conducted
so as to benefit, directly or indirectly, the corporation;
To raise or procure funds from other individuals, firms,
associations or corporations to be invested in any business in
which this corporation might engage, for and on behalf of the
parties investing such funds as individual owners or in one or more
joint ventures, general partnerships, limited partnerships,
syndicates or other associations or other corporations, whether the
corporation is or is not a co-owner, joint venturer, associate,
partner or shareholder in the business in which such funds are
levied;
To guarantee, co-sign and be surety for the debts, dues
and obligations of its subsidiaries, affiliates, parent
corporations, shareholders, partners, whether general, special or
limited, joint co-adventurers, co-tenants, and any other persons,
firms or corporations, to obtain a loan commitment or contract
which will beneficially affect this corporation or its
shareholders; provided, it shall not be the purpose of this
corporation to transact a business of insurance or to do any act
prohibited by law to a business corporation;
The objects and purposes specified in the foregoing
clauses shall, except where otherwise expressed, be in no wise
limited or restricted by reference to, or inference from the terms
of any other clause in this or any other article of this
Certificate of Incorporation, but the objects and purposes
specified in each of the foregoing clauses of this article shall be
regarded as independent powers as well as objects and purposes and-
the enumeration of specific powers, objects and purposes is in
addition to and not in limitation of the powers conferred by the
provisions of the Oklahoma General Corporation Act.
ARTICLE FIVE
The aggregate number of shares of all classes of stock
which the corporation shall have authority to issue is one hundred
two million shares (102,000,000) of which two million (2,000,000)
are to be Preferred Stock of a par value of $10.00 per share, and
one hundred million shares (100,000,000) are to be common stock
with a par value of $2.50 per share. The designation of each class,
the number of shares of each class, and the par value of each class
are as follows:
Number Par
Class of Shares Value
Preferred Stock 2,000,000 $10.00
Common Stock 100,000,000 $ 2.50
The preferences, qualifications, limitations,
restrictions and special or relative rights in respect of the
shares of each class are as follows:
Division A - Preferred Stock. Shares of the Preferred
Stock may be issued from time to time in one or more series, shares
of each series to have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative,
participating, option or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and
expressed herein or in a resolution or resolutions providing for
the issue of such series adopted by the Board of Directors of the
Corporation. The Board of Directors of the Corporation is hereby
expressly authorized, subject to the limitations provided by law,
to establish and designate series of the Preferred Stock, to fix
the number of shares constituting each series, and to fix the
designations of the relative powers, rights, preferences and
limitations of the shares of each series and the variation and
variations in the relative powers, rights, preferences and
limitations as between series, and to increase and to decrease the
number of shares constituting each series. Subject to the
limitations imposed herein and by law, the authority of the Board
of Directors of the Corporation with respect to each series shall
include but not be limited to the authority to determine the
following: (i) the designation and number of shares constituting
each series; (ii) the dividend rate payable on each series and
whether such dividends are cumulative or noncumulative; (iii) the
voting rights, if any, with respect to each series; (iv) the
redemption rights, if any, with respect to each series; (v) the
creation, if any, of a sinking fund with respect to each series:
(vi) the conversion rights, if any, with respect to each series;
(vii) the preference rights upon liquidation or dissolution; (viii)
the relative priority of the shares of each series to shares of
other classes or series with respect to dividends or other
dissolution of or the distribution of the assets of the
corporation; and (ix) any other rights and qualifications,
preferences and limitations or restrictions of the shares of each
series.
Add Rider 1
Variable Term Preferred Stock, Series A and Series B
1. Designation; Amount and Series.
The two series of Preferred Stock established hereby
shall comprise (i) 50,000 shares designated as "Variable Term
Preferred Stock, Series A" (the "Series A VTP") and (ii) 50,000
shares designated as "Variable Term Preferred Stock, Series B" (the
"Series B VTP"). The Series A VTP and Series B VTP are sometimes
referred to herein collectively as the Variable Term Preferred
Stock ("VTP"). No fractional shares of VTP shall be issued.
2. Definitions.
Capitalized terms used herein but not defined in this
Section 2 shall have the meanings specified in Section 9(a) hereof.
Unless the context or use indicates another or different meaning,
the following terms shall have the following meanings (with terms
being defined in the singular having a corresponding meaning when
used in the plural and vice versa):
(a) "Act" shall mean the Securities Act of 1933, as
amended.
(b) "Applicable Rate" shall have the meaning specified
in Section 4(c)(i).
(c) "Business Day" shall mean a day on which the New
York Stock Exchange is open for trading and which is not a day on
which banks in New York City are authorized by law to close.
(d) "Commercial Paper Dealers" shall mean The First
Boston Corporation and Merrill Lynch Money Markets Inc. or, in lieu
thereof, their respective affiliates or successors, provided that
such entity is then engaged in buying or selling commercial paper.
(e) "Commission" shall mean the Securities and Exchange
Commission.
(f) "Default Period" shall have the meaning specified in
Section 7(a)(i).
(g) "Dividend Payment Date" shall mean a date on which
dividends on a series of VTP are payable, as determined under
Section 4(b).
(h) "Holder" shall mean an individual or entity in whose
name an outstanding share of VTP is registered on the Stock Books.
(i) "Liquidation Preference" shall have the meaning
specified in Section 6(a).
(j) "Minimum Holding Period" shall have the meaning
specified in Section 3(g).
(k) "Moody's" shall mean Moody's Investors Service, Inc.
or any successor thereto.
(l) "Normal STAR Term Date" shall have the meaning
specified in Section 3(b).
(m) "Notice of Redemption" shall have the meaning
specified in Section 5(b)(i).
(n) "Original Issuance Date," with respect to each
series of VTP, shall mean the date on which the Corporation
originally issues the shares of such series.
(o) "Parity Preferred Stock" shall have the meaning
specified in Section 7(a).
(p) "Purchaser's Letter" shall mean a letter addressed
to the Corporation, the Auction Agent, a Broker-Dealer and an Agent
Member substantially in the form of Exhibit B to the Broker-Dealer
Agreement.
(q) "Rating Agencies," on any date of determination,
shall mean Moody's and S&P or if only one of such rating agencies
is then rating the shares of VTP, such rating, agency, of if
neither of such rating agencies is then rating the shares of VTP,
any nationally recognized statistical rating organization (as such
term is used in the rules and regulations of the Commission under
the Securities Exchange Act of 1934, as amended) selected by the
Corporation or its successor.
(r) "Securities Depository" shall mean The Depository
Trust Company and its successors and assigns or any other
securities depository selected by the Corporation which agrees to
follow the procedures required to be followed by such securities
depository in connection with shares of VTP.
(s) "S&P" shall mean Standard & Poor's Corporation or
any successor thereto.
(t) "STAR Term" shall have the meaning specified in
Section 3(b).
(u) "Stock Books" shall mean the stock transfer books of
the Corporation maintained by the Auction Agent with respect to the
shares of VTP.
(v) "Submission Deadline" shall mean 12:30 P.M., New
York City time, on each Auction Date, or such other time on the
Auction Date specified by the Auction Agent, by which Broker-
Dealers are required to submit Orders in writing to the Auction
Agent.
(w) "Substitute Commercial Paper Dealers" shall mean
Goldman, Sachs & Co. and Shearson Lehman Commercial Paper
Incorporated, or in lieu thereof, their respective affiliates or
successors, provided that such entity is then engaged in buying or
selling commercial paper.
(x) "Term" shall mean a Variable Term or a STAR Term.
(y) "Term Selection Agent" shall mean, collectively, The
First Boston Corporation and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and their respective successors and assigns, under
the Term Selection Agent Agreement.
(z) "Term Selection Agent Agreement" shall mean the
agreement dated as of February 8, 1989 among the Corporation, The
First Boston Corporation and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, pursuant to which The First Boston Corporation and
Merrill Lynch, Pierce, Fenner & Smith Incorporated have agreed to
act as Term Selection Agent.
(aa) "Variable Term" shall have the meaning specified in
Section 3(b).
(bb) "Voting Parity Preferred Stock" shall have the
meaning specified in Section 7(a).
3. Term Selection
(a) The initial Terms for the Series A VTP and the
Series B VTP shall commence on the Original Issuance Date and end
on April 4, 1989, in the case of Series A VTP, and April 15, 1990,
in the case of the Series B VTP.
(b) The Term Selection Agent shall, not less than 10 nor
more than 20 days prior to the last day of any Term for a series of
VTP, either (i) subject to the provisions of paragraph (f) below,
select a subsequent Variable Term which will begin on the last day
of the then current Term and end on a quarterly Dividend Payment
Date (as defined below) nearest to any of the first through the
tenth anniversaries of the last day of the then current Term, or
(ii) subject to the provisions of paragraph (f) below, select a
subsequent STAR Term which will begin on the last day of the then
current Term and subject to paragraph (g) below end on the date
(the Normal STAR Term Date") that is (x) if the Term preceding such
STAR Term is a Variable Term, the day specified by the Term
Selection Agent not earlier than the 46th day thereafter and (y) if
the Term preceding such STAR Term is a STAR Term, the 49th day
thereafter. Each such period commencing on the last day of the
then current Term and ending on the final Dividend Payment Date
specified by the Term Selection Agent is referred to herein as a
"Variable Term" or a "STAR Term," as the case may be.
(c) Subject to the provisions of paragraph (d) below,
the Term Selection Agent shall, not less than 10 days nor more than
20 days prior to the last day of the then current Term, give
written notice of its election pursuant to paragraph (b) above to
the Corporation, the Auction Agent and the Securities Depository.
(d) If the Term Selection Agent has, pursuant to
paragraph (c) above, duly given notice of its selection of (1) a
subsequent Variable Term pursuant to paragraph (b) above, the Term
Selection Agent may (i) subject to paragraph (f) below, upon not
less than five Business Days' written notice to the Corporation,
the Auction Agent and the Securities Depository prior to the
Auction Date scheduled to occur at the end of the then current Term
for such series of VTP, elect to change the length of such
subsequent Variable Term to any length of time permitted for a
Variable Term pursuant to paragraph (b) above, and (ii) subject to
paragraph (f) below upon not less than two Business Days' written
notice to the Corporation, the Auction Agent and the Securities
Depository prior to the Auction Date scheduled to occur at the end
of the then current Term for such series of VTP, elect to change
such subsequent Variable Term to a STAR Term or (2) a subsequent
STAR Term pursuant to paragraph (b) above (or shall have been
deemed to have selected a STAR Term in accordance with this
paragraph (d), the Term Selection Agent may, subject to paragraph
(f) below, upon not less than five Business Days' written notice to
the Corporation, the Auction Agent and the Securities Depository
prior to the Auction Date scheduled to occur at the end of the then
current Term for such series of VTP, elect to change such
subsequent STAR Term to a Variable Term. The Term Selection Agent
shall be under no duty to provide the notice to the parties set
forth in paragraph (c) above if the Term selected to succeed a STAR
Term is a STAR Term. Failure to send any notice by the tenth day
prior to the end of any STAR Term shall be deemed a selection of a
STAR Term as the next succeeding Term.
(e) In connection with the selection of any subsequent
Variable Term pursuant to paragraphs (b) and (d) above, or the
election to change the length of any Variable Term in accordance
with paragraph (d) above, the Term Selection Agent may provide for
redemption of such series in accordance with Section 5(a)(iii)
hereof.
(f) Notwithstanding the foregoing:
(w) the Term Selection Agent may select a STAR Term
with respect to a series of VTP at the end of a Variable Term only
if on the date of such notice dividend payments on all shares of
VTP are current; and
(x) a one-year Variable Term for a series of VTP
will automatically follow the expiration of the preceding Variable
Term for such series in the following circumstances:
(i) the Term Selection Agent does not select
a Variable Term or a STAR Term with respect to such
series by the tenth day prior to the last day of
the preceding Variable Term for such series; or
(ii) dividend payments on any shares of VTP
are in arrears on the Auction Date occurring at the
end of the preceding Variable Term for such series;
or
(iii) Sufficient Clearing Bids are not made
for any reason in an Auction occurring at the end
of the preceding Variable Term for such series; or
(iv) no Auction is held for any reason on the
Auction Date scheduled to occur at the end of the
preceding Variable Term for such series; or
(v) The Corporation fails to deposit by the
Business Day next preceding the Auction Date with
the Auction Agent funds sufficient to pay the
redemption price of shares of such series of VTP
called for redemption; and
(y) a STAR Term for a series of VTP will automatically
follow the expiration of the preceding STAR Term for such series in
the following circumstances:
(i) the Term Selection Agent does not select
a Variable Term or a STAR Term (including a deemed
selection as discussed in paragraph 3(d) with
respect to such series by the tenth day prior to
the last day of the preceding STAR Term for such
series; or
(ii) Sufficient Clearing Bids are not made
for any reason in an Auction occurring at the end
of the preceding STAR Term for such series; or
(iii) no Auction is held for any reason on
the Auction Date scheduled to occur at the end of
the preceding STAR Term for such series; or
(iv) the Corporation fails to deposit by the
Business Day next preceding the Auction Date with
the Auction Agent funds sufficient to pay the
redemption price of shares of such series of VTP
called for redemption.
(g) (i) Notwithstanding the provisions of paragraph (b)
above, if (1) the Securities Depository shall make available to its
participants and members, in next day funds in The City of New
York, New York on each Dividend Payment Date, the amount due as
dividends on each Dividend Payment Date and the calendar day next
succeeding the Normal STAR Term Date is not a Business Day, or (2)
any such Normal STAR Term Date is not a Business Day, then the STAR
Term shall end on the first Business Day that precedes such Normal
STAR Term Date that is next succeeded by a Business Day; provided
further, however, that if any date on which dividends shall be
payable as determined above is a day that would result in the
number of days in any STAR Term (determined by excluding the
preceding Auction Date and including the succeeding Auction Date)
is not at least equal to the then-current minimum holding period
(the "Minimum Holding Period") required for corporate taxpayers
generally to be entitled to the dividend-received deduction for
federal income tax purposes in respect of dividends (other than
extraordinary dividends) paid on preferred stock held by non-
affiliated corporations, then the STAR Term shall end on the first
Business Day following such date that is immediately followed by a
Business Day and that results in the number of days in the STAR
Term (determined as above) being at least equal to the then current
Minimum Holding Period (each such date on which dividends on VTP
shall be payable in accordance with this paragraph (g) being
referred to herein as a "Dividend Payment Date" for the applicable
STAR Term).
(ii) Notwithstanding the foregoing, in the event of
a change in law altering the Minimum Holding Period, the Board of
Directors shall uniformly adjust the number of days in STAR Terms
commencing after the effective date of such change in law to equal
or exceed the then-current Minimum Holding Period; provided that
the number of days in a STAR Term (without giving effect to the
exceptions described in paragraph (g)(i) above) shall not (A)
exceed by more than nine days the length of such then-current
Minimum Holding Period and will be evenly divisible by seven, and
(B) in any event exceed one year. Upon any change in the number of
days in a STAR Term as a result of such a change in law, the
Corporation shall cause to be mailed notice of such change by
first-class mail, postage prepaid, to the Term Selection Agent, the
Auction Agent and the Securities Depository.
(h) The Corporation shall use its best efforts to
maintain a Term Selection Agent to act in accordance with the
provisions described herein for each series of VTP.
4. Dividends.
(a) Holders of shares of each series of VTP shall be
entitled to receive, when, as and if declared by the Board of
Directors, out of funds of the Corporation legally available for
payment thereof, cumulative cash dividends per share at the
dividend rates determined as set forth in this Section 4, and no
more, payable on the dates as set forth below in this Section 4.
(b) Beginning on the Original Issuance Date, dividends
on the shares of each series of VTP shall accumulate (whether or
not declared) at the Applicable Rate and shall be payable as
follows:
(X) With respect to a STAR Term, dividends on the
shares of such series shall be payable on the last day of
the STAR Term.
(Y) With respect to a Variable Term, dividends on
the shares of such series shall be payable (following the
final Dividend Payment Date for a preceding Term for such
series) for the current Term on each January 15, April
15,, July 15, and October 15, to but not including the
last day of such Variable Term designated by the Term
Selection Agent pursuant to Section 3(a) hereof; provided
that no dividend payment shall be made on any such
Dividend Payment Date falling within 30 days of the final
Dividend Payment Date of the Preceding Term; and provided
further, that if any such Dividend Payment Date is not a
Business Day, dividends on the shares of such series
shall be payable on the next succeeding Business Day.
(c) (i) The dividend rate per share of each series of
VTP of for the period commencing on the Original Issuance
Date and ending on the final Dividend Date for the
initial Term for such series shall be 8.10% per annum for
the Series A VTP and 8.40% per annum for the Series B
VTP, respectively, and the dividend rate on the shares of
each series of VTP for each subsequent Term shall be the
rate per annum (the "Applicable Rate" for such Term)
determined pursuant to the Auction Procedures set forth
in Section 9 hereof. Notwithstanding the foregoing, in
the event that an Auction for a series of VTP is not held
on the Auction Date scheduled to occur at the end of the
preceding Term for such series for any reason (including,
without limitation, the failure of an Auction Agent to be
appointed), the Applicable Rate for such series of VTP
for such Term will be equal to the Maximum Applicable
Rate. In the event that Sufficient Clearing Bids do not
exist with respect to an Auction for a series of VTP, the
dividend rate for such series shall be determined in
accordance with the provisions of Section 9(d)(ii)(B)
hereof.
(ii) The amount of dividends per share of a series
of VTP payable on each Dividend Payment Date for any
Variable Term shall be computed on a basis of a 360-day
year consisting of twelve 30-day months and, in the case
of a Variable Term beginning on a date other than a
quarterly Dividend Payment Date, portions of any 30-day
month based upon the actual number of days elapsed. The
amount of dividends payable per share of a series of VTP
payable on each Dividend Payment Date in respect of any
STAR Term shall be computed by multiplying the Applicable
Rate for such STAR Term by a fraction, the numerator of
which will be the number of days in such STAR Term
(determined by including the first day thereof and
excluding the last day thereof) during which such share
was outstanding and the denominator of which will be 360,
and multiplying the result by $1,000.
(d) Except as provided below, no dividends shall be
declared or paid or set apart for payment on the shares of any
class of stock ranking, as to dividends, on a parity with or junior
to shares of VTP for any period unless full cumulative dividends
have been or contemporaneously are declared and paid on the shares
of VTP through the most recent Dividend Payment Date. When
dividends are not paid in full as aforesaid upon the shares of VTP
or any other class of stock ranking on a parity as to dividends
with shares of VTP, all dividends declared upon shares of VTP and
any other such class of stock ranking on a parity as to dividends
with shares of VTP shall be declared pro rata so that the amount of
dividends declared per share on shares of VTP and such other class
of stock shall in all cases bear to each other the same ratio that
accumulated but unpaid dividends per share on the shares of VTP and
such other class of stock bear to each other. Holders of shares of
VTP shall not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends, as
herein provided, on shares of VTP. To interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend
payment or payments on shares of VTP which may be in arrears.
(e) So long as any shares of VTP are outstanding, no
dividend (other than a dividend or distribution paid in shares of,
or options, warrants or rights to subscribe for or purchase shares
of, common stock or any other stock ranking junior to shares of VTP
as to dividends and distribution of assets upon dissolution,
liquidation or winding up and other than pro rata as provided
above) shall be declared or paid or set aside for payment or other
distribution declared or made upon the common stock or upon any
other stock of the Corporation ranking junior to or on a parity
with shares of VTP as to dividends or distribution of assets upon
dissolution, liquidation or winding up nor shall any common stock
nor any other stock of the Corporation ranking junior to or on a
parity with shares of VTP as to dividends or distribution of assets
upon dissolution, liquidation or winding up be redeemed, purchased
or otherwise acquired for any consideration (or any monies be paid
to or made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by conversion
into or exchange for stock of the Corporation ranking junior to
shares of VTP as to dividends and distribution of assets upon
dissolution, liquidation or winding up) unless, in each case, the
full cumulative dividends on all outstanding shares of VTP shall
have been paid for all past Terms.
(f) Not later than noon, New York City tim, on the
Business Day immediately preceding each Dividend Payment Date with
respect to which dividends on the shares of VTP have been declared,
the Corporation shall deposit with the Auction Agent funds
(available in The City of New York, New York on such Dividend
Payment Date) sufficient for the payment of such dividends and
shall give the Auction Agent irrevocable instructions and authority
to apply such funds and, if applicable, the income and proceeds
therefrom to the payment of such dividends. The Corporation may
direct the Auction Agent to invest any such available funds,
provided that the proceeds of any such investment shall be
available in The City of New York, New York, on such Dividend
Payment Date. All such funds (to the extent necessary to pay the
full amount of such dividends) shall be held in trust for the
benefit of the holders of record entitled thereto; provided, that
following each Dividend Payment Date the Corporation shall be
entitled to receive from the Auction Agent any funds remaining
after the payment in full of dividends on such Dividend Payment
Date.
(g) Each dividend declared by the Board of Directors
shall be paid to the Holders of shares of VTP as such Holders'
names appear on the Stock Books on the related record date. Such
record date shall be the Business Day next preceding the applicable
Dividend Payment Date. Dividends shall be paid by check except
that dividends paid to the Securities Depository shall be paid in
same-day funds on the Dividend Payment Date. Dividends in arrears
with respect to any past Dividend Payment Date with respect to
shares of a series of VTP may be declared by the Board of Directors
and paid on the outstanding shares of VTP of such series on any
date fixed by the Board of Directors, whether or not a regular
Dividend Payment Date, to the Holder of the shares of VTP of such
series on the related record date fixed by the Board of Directors,
which shall not be less than 10 nor more than 50 days before the
date fixed for the payment of such dividend. Any dividend payment
made on shares of a series of VTP shall first be credited against
the dividends accrued with respect to the earliest Dividend Payment
Date for which dividends have not been paid.
5. Redemption and Repurchase.
(a) Redemption at the Option of the Corporation
Shares of a series of VTP shall be redeemable by the
Corporation as provided below:
(i) At its option the Corporation may redeem the
shares of Series A VTP or Series B VTP out of funds
legally available therefor, upon not less than 30 days'
and not more than 45 days' prior written notice, in
whole, or from time to time in part, on the final
Dividend Payment Date with respect to any Term for such
series, at a redemption price equal to $1,000 per share,
plus an amount equal to accumulated and unpaid dividends
(whether or not earned) to the date fixed for redemption;
provided that dividends payable on any past Dividend
Payment Date for all series of VTP shall be current and
the dividend payable on such final Dividend Payment Date
shall have been declared by the Board of Directors prior
to the date any action is taken by the Corporation to
redeem shares of such series of VTP. The Corporation may
redeem shares of any series of VTP only in eleven
multiples of $100,000.
(ii) During any one-year Variable Term for a series
of VTP resulting from (a) an Auction for such series in
which Sufficient Clearing Bids have not been made, (b)
the failure to hold an Auction for such series for any
reason on the Auction Date scheduled to occur at the end
of the preceding Variable Term, or (c) a default by the
Corporation in the deposit of the redemption price for
shares of such series previously called for redemption by
the Business Day next preceding the Auction Date, shares
of such series may be redeemed, in whole or in part, on
any Dividend Payment Date during such one-year Variable
Term for such series, upon the giving of notice and at
the redemption price set forth in paragraph (i) above.
(iii) The shares of a series of VTP shall also be
redeemable at the option of the Corporation during any
Variable Term for such series upon the additional terms,
if any, specified by the Term Selection Agent in
connection with the selection of a Variable Term for such
series of VTP pursuant to Section 3(b) hereof, the
election by the Term Selection Agent to change the length
of a subsequent Variable Term pursuant to Section 3(d)
hereof or the election by the Term Selection Agent to
change a subsequent STAR Term to a Variable Term pursuant
to Section 3(d) hereof; provided that the redemption
price so specified shall not be less than $1,000 per
share, plus an amount equal to accumulated and unpaid
dividends (whether or not earned or declared). Any such
optional redemption terms shall be effective upon written
notice given by the Term Selection Agent to the
Corporation, the Auction Agent and the Securities
Depository in accordance with the provisions of Section
3 hereof. In the event that the Term Selection Agent
subsequently elects to change a Term for a series of VTP
from a previously announced Variable Term to a STAR Term,
any optional redemption provisions proposed with respect
to such previously announced Variable Term shall not
become effective during such STAR Term.
(b) General Provisions for Redemption
(i) Whenever shares of VTP are to be redeemed, the
Corporation shall cause to be mailed, within the time
period specified in paragraph (a)(i) of this Section 5,
a written notice of redemption (a "Notice of Redemption")
by first-class mail, postage prepaid, to the Securities
Depository and to the Auction Agent. Each Notice of
Redemption shall state (A) the redemption date, (B) the
number of shares of such series of VTP to be redeemed,
(c) the redemption price, (D) that dividends on the
shares to be redeemed will cease to accumulate on such
redemption date, (E) the provision hereof under which the
redemption is being made, (F) the place or places where
shares of VTP are to be surrendered for payment of the
redemption price, (G) that the Holders of shares of VTP
called for redemption will not be entitled to
participate, with respect to shares called for
redemption, in any Auction held subsequent to such Notice
of Redemption provided that funds sufficient to redeem
such shares shall have been deposited with the Auction
Agent by the Business Day next preceding the Auction Date
relating to such Auction, and (H) that, notwithstanding
such Notice of Redemption, if the Corporation fails to
deposit with the Auction Agent funds sufficient to pay
such redemption price by the specified day prior to the
redemption date, such Notice will have no effect and
there will be no redemption. The Notice of Redemption
shall also be published on or about the date thereof in
The Wall Street Journal (or, if such notice cannot be
published therein, then in a comparable newspaper printed
in the English language and in general circulation in The
City of New York). No defect in the Notice of Redemption
or in the mailing or publication thereof shall affect the
validity of the redemption proceedings, except as
required by applicable law. A Notice of Redemption shall
be deemed given on the day that it is mailed in
accordance with the first sentence of this clause (i).
(ii) If fewer than all of the outstanding shares of
a series of VTP are to be redeemed, the number of shares
to be redeemed shall be determined by the Corporation and
such shares shall be redeemed pro rata or by lot, with
adjustments to avoid redemption of fractional shares and
to comply with the requirement to hold shares only in
whole units of 100 shares during a STAR Term. So long as
all shares of a series of VTP are held of record by the
nominee of the Securities Depository, the Auction Agent
shall given notice to the Securities Depository of the
number of shares of VTP to be redeemed and the Securities
Depository shall determine by lot the number of shares of
VTP to be redeemed from the account of each Broker-Dealer
acting on behalf of an Existing Holder (or, if such
Broker-Dealer is not a member of the Securities
Depository, from the account of the Agent Member acting
for such Broker-Dealer). Thereafter, each Broker-Dealer
(or Agent Member, as appropriate) shall select the number
of shares of such series to be redeemed from each
Existing Holder for whom it acts (including the Broker-
Dealer to the extent it holds shares of VTP for its own
account), with appropriate adjustments, when necessary,
to comply with the requirement to hold shares of VTP only
in whole units of 100 shares during any STAR Term. A
Broker-Dealer (or Agent Member, as appropriate) may
determine to redeem shares of VTP from some Existing
Holders (including the Broker-Dealer itself) without
redeeming shares of VTP from the accounts of other
Existing Holders.
(iii) Not later than noon on the Business Day next
preceding the Auction Date (or, if earlier, by noon on
the Business Day next preceding the date fixed for
redemption) the Corporation shall deposit with the
Auction Agent sufficient funds (available in The City of
New York, New York on such redemption date) to redeem the
shares of VTP as to which a Notice of Redemption has been
given and shall give the Auction Agent irrevocable
instructions and authority to apply such funds and, if
applicable, the income and proceeds therefrom, to the
payment of the redemption price for such shares to the
Holder or Holders thereof upon surrender of the
certificate or certificates therefor. The Corporation
may direct the Auction Agent to invest any such available
funds, provided that the proceeds of any such investment
shall be available in The City of New York, New York at
the opening of business on such redemption date. All
funds held by the Auction Agent pursuant to this clause
(iii) (to the extent necessary to pay the full amount of
the redemption price for such shares) shall be held in
trust for the Holders of such shares; provided, that
following each such redemption date the Corporation shall
be entitled to receive from the Auction Agent any funds
remaining after the payment in full of the redemption
price on such redemption date.
(iv) If the Corporation shall have given or caused
to be given a Notice of Redemption, shall have
irrevocably deposited with the Auction Agent a sum
sufficient to redeem the shares of VTP as to which such
Notice of Redemption was given and shall have given the
Auction Agent irrevocable instructions and authority to
pay the redemption price to the Holders of such shares,
then on the date of such irrevocable deposit, all rights
of the Holders of such shares by reason of their
ownership of such shares (except their right to receive
the redemption price thereof, but without interest) shall
terminate, and such shares shall no longer be deemed
outstanding for any purpose, including, without
limitation, the right of the Holders of such shares to
vote on any matter or to participate in any subsequent
Auctions. In addition, subject to clause (vii) below,
any shares of VTP as to which a Notice of Redemption has
been given by the Corporation shall be deemed to be not
Outstanding (as defined in Section 9(a)(xxi)) for
purposes of any Auction held subsequent to the date of
such Notice of Redemption. The Corporation shall be
entitled to receive, from time to time, from the Auction
Agent the income, if any, derived from the investment of
monies deposited with the Auction Agent (to the extent
that such income is not required to pay the redemption
price of the shares to be redeemed), and the Holders of
shares to be redeemed shall have no claim to any such
income. In case the Holder of any shares called for
redemption shall not claim the redemption price for his
shares within six months after the redemption date, the
Auction Agent shall, to the extent permitted by
applicable law, upon demand of the Corporation, pay to
the Corporation such amount remaining on deposit and the
Auction Agent shall thereupon be relieved of all
responsibility to the Holder with respect to such shares,
and such Holder shall thereafter look only to the
Corporation for payment of the redemption price of such
shares.
(v) Except as set forth in this Section 5 with
respect to redemptions and subject to the provisions of
Section 5(a)(i), and as long as dividend payments on all
shares of VTP are current nothing contained herein shall
limit any legal right of the Corporation or any entity
controlled by the Corporation to purchase or otherwise
acquire any shares of VTP outside of an Auction at any
price, which price may be equal to or less than the price
at which such shares may then be redeemed, in privately
negotiated transactions or otherwise.
(vi) Solely for the purpose of determining the
number of shares of VTP to be stated in a Notice of
Redemption as subject to an optional redemption, the
amount of funds legally available for such redemption
shall be determined as of the date of such Notice of
Redemption.
(vii) Notwithstanding any Notice of Redemption, if
the Corporation does not within the times specified in
clause (iii) above deposit with the Auction Agent funds
sufficient to pay such redemption price, such notice
shall have no effect and there will be no redemption. In
addition, if the date fixed for redemption of shares of
a series of VTP, whether in whole or in part, is the
final Dividend Payment Date in respect of a Variable
term, the next succeeding Term for the shares of such
series will be a one year Variable Term and dividends
during such Variable Term shall accumulate at the Maximum
Applicable Rate for such one-year Variable Term, the next
succeeding Term for the shares of such series will be a
one-year Variable Term and dividends during such Variable
Term shall accumulate at the Maximum Applicable Rate for
such one-year Variable Term as in effect on the next
scheduled Auction Date with respect to shares of such
series of VTP and such shares may be redeemed during such
one-year Variable Term as described above. If the date
fixed for redemption of a series of VTP, whether in whole
or in part, is the last day of a STAR Term, the next
succeeding term for the shares of such series will be a
STAR Term and dividends during such STAR Term shall
accumulate at the Maximum Applicable Rate for such STAR
Terms as in effect on the next scheduled Auction Date
with respect to shares of such series of VTP.
(c) Repurchase of Shares in Certain Events
In the event that after the Original Issuance Date there
shall occur any Repurchase Event (as hereinafter defined) with
respect to the Corporation, then the Corporation shall offer to
repurchase all outstanding shares of VTP on the date (the
"Repurchase Date") that is forty-five days after the occurrence of
such Repurchase Event (or such later date as may be required by
applicable law), at their liquidation preference, plus accumulated
and unpaid dividends to the Repurchase Date, out of funds legally
available therefor. Holders shall have the option to accept or
reject such offer to repurchase in whole or in part.
Within 10 days after the occurrence of a Repurchase
Event, the Corporation is obligated to mail a notice of the
occurrence of such Repurchase Event to the Auction Agent and the
Securities Depository. The notice shall state that a Repurchase
Event has occurred, shall specify the date and nature thereof and
shall set forth the date before which a Holder must notify the
Corporation of such Holder's intention to exercise the repurchase
right, and the procedure which such Holder must follow to exercise
such right. The Corporation shall cause a copy of such notice to
be published in The Wall Street Journal (or, if such notice cannot
be published therein, then in a comparable newspaper of general
circulation printed in the English language in The City of New
York). To exercise the repurchase right, the Holder of the shares
of VTP must deliver on or before the thirtieth day after the date
of the Repurchase Event (or on or before such later date as may be
necessary to comply with any applicable law) written notice to the
Corporation (or an agent designated by the Corporation for such
purpose), with a copy to the Auction Agent, of the Holder's
exercise of such right, together with the shares of VTP with
respect to which the right is being exercised.
A "Repurchase Event" shall be deemed to have occurred at
each such time as (a) whether or not approved by the Board of
Directors of the Corporation, either (i) any person is or becomes
the beneficial owner, directly or indirectly, of securities having
20% or more of the voting power of the Voting Stock, (ii) the
Corporation declares, or announces its intention to declare, a
dividend or sets, or announces its intention to set, a record date
for determining holders of Voting Stock entitled to receive, a
distribution of cash, property or securities having, in either
case, after giving effect to all similar transactions during the
365-day period immediately preceding such event, an aggregate fair
market value in excess of 25% of the Net Worth of the Corporation
at the time of such announcement, declaration or setting of a
record date, (iii) the Corporation commences, or announces its
intention to commence, a tender or exchange offer for securities
have 20% or more of the voting power of the Voting Stock, after
giving effect to all similar transactions during the 365-day period
immediately preceding such event, (iv) the Corporation or any of
its Significant Subsidiaries or all or a substantial portion of the
assets of the Corporation or any of its Significant Subsidiaries is
acquired by a party which is not consolidated with the Corporation
for financial reporting purposes, or (v) the Corporation or any of
its affiliates acquires any entity or substantial assets which,
upon completion of such acquisition, constitute a Significant
Subsidiary of the Corporation and (b)(i) during the period (A)
commencing with (1) the first public announcement of an event
described above or (2) if the consummation of such distribution,
tender or exchange offer, or disposition or acquisition occurs
later than 120 days after such first public announcement, the day
which is 120 days prior to such consummation and (B) ending 60 days
after S&P or Moody's is reduced as follows: (1) in the event that
the then-current rating assigned to the shares of VTP by either of
such rating agencies is within one of the four highest rating
categories, such rating is reduced to a rating that is not within
such four highest rating categories, or (2) in the event the then-
current rating assigned to the shares of VTP by either of such
rating agencies is not within one of the four highest rating
categories, such rating is reduced by one full rating category or
(ii) at any time, the relevant rating agency publicly announces
that the then-current rating assigned to the shares of VTP is
reduced in the manner described in either (1) or (2) of the
foregoing clause (b)(i) and that such reduction was caused solely
by the occurrence or proposed occurrence of an event described in
clause (a)(i)-(v), inclusive, above and related transactions.
For purposes of this subsection, "Voting Stock" means
shares of stock of the Corporation entitling the holder thereof to
vote for the election of directors of the Corporation; "person"
means a person or group (within the meaning of Section 13(d)(3) of
the Securities Exchange Act of 1934 (the "1934 Act")), together
with any affiliates or associates thereof; "beneficial ownership"
shall be determined pursuant to the provisions of Rule 13d-3 under
the 1934 Act; "Net Worth" of the Corporation refers to the excess
of its assets over its liabilities as reported on the balance sheet
contained in its more recent report under the 1934 Act;
"Significant Subsidiary" shall have the meaning assigned to such
term in Rule 1-02 of Regulation S-X promulgated by the Commission
and the determination of reduction by "one full rating category"
shall take into account subclassifications within a category (for
example, a reduction from "BB-" to "B" or "B+" shall not constitute
a reduction by one full rating category while a change from "BB-"
to "B-" or below shall constitute such a reduction).
(d) All shares of VTP acquired by the Corporation, by
redemption or otherwise, shall be retired and shall assume the
status of authorized and unissued shares.
6. Liquidation Rights.
(a) Upon the voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation,
Holders shall be entitled to receive, out of the assets of the
Corporation available for distribution to stockholders, after
satisfying claims of creditors but before any payment or
distribution of assets is made on the common stock or on any other
class of stock ranking junior to the shares of VTP upon
liquidation, a liquidation distribution in an amount (the
"Liquidation Preference") equal to $1,000 per share, plus in each
case an amount equal to accumulated and unpaid dividends on each
such share (whether or not earned or declared) to the date fixed
for payment of such distribution.
(b) If upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation are insufficient to pay the Holders of the shares of
VTP the full amount of the Liquidation Preference to which they are
entitled, Holders of VTP shall share ratably with the holders of
any other series of preferred stock ranking on a parity with the
VTP as to liquidation in any such distribution of assets of the
Corporation in proportion to the full respective preferential
amounts to which the holders of VTP and such other stock are
entitled.
(c) In the event of any such liquidation, dissolution or
winding up, unless and until payment in full has been made to the
Holders of the shares of VTP and the holders of any other stock
ranking on a parity with the shares of VTP as to liquidation of the
liquidation distribution to which they are entitled, no dividend or
other distribution shall be made to the holders of the common stock
or other capital stock ranking junior to the shares of VTP upon
liquidation, no purchase, redemption or other acquisition for any
consideration by the Corporation shall be made in respect of the
common stock or such capital stock and no payment, delivery or
commitment to make payment or delivery of any money or assets to
any Affiliate shall be made, other than any payments or deliveries
arising from pre-existing obligations entered into in the ordinary
course of business.
(d) After payment of the full amount of the liquidation
distribution to which they are entitled, the holders of the shares
of VTP shall not be entitled to any further participation in any
distribution of assets of the Corporation.
(e) A consolidation or merger of the Corporation with or
into any other corporation or corporations, or a sale, lease or
exchange of all or substantially all of the assets of the
Corporation in consideration for the issuance of equity securities
of another corporation, shall not be deemed to be a liquidation,
dissolution or winding up of the Corporation; provided that the
consolidation, merger, sale, lease or exchange would not adversely
affect the preferences, limitations or rights of the shares of VTP
(unless the holders of at least a majority of the Outstanding
shares of all series of VTP and any other series of preferred stock
ranking on a parity with the VTP as to liquidation, voting together
as a single class, have consented thereto).
7. Voting Rights.
(a) Rights to Elect Members of the Board of Directors
(i) During any period (referred to herein as a
"Default Period") when dividend payment on any series of
VTP or other series of preferred stock ranking on a
parity with the VTP as to distribution of dividends and
assets ("Parity Preferred Stock") shall not have been
paid or declared and a sum sufficient for the payment
thereof set aside for payment, for such number of Terms,
or portions thereof, which in the aggregate contain at
least 540 days, then in any such case the number of
directors of the Corporation shall automatically be
increased by two and the holders of the shares of all
series of VTP and Parity Preferred Stock possessing like
voting rights which have vested and are exercisable
("Voting Parity Preferred Stock") shall possess full
voting powers (to the exclusion of the holders of all
other series and classes of capital stock of the
Corporation), voting as a single class, to elect such
number of directors at a special meeting of the holders
of VTP and such series of Voting Parity Preferred Stock
called as hereinafter provided.
(ii) The Default Period and voting rights created by
the occurrence of the circumstances described above shall
continue unless and until all accumulated and unpaid
dividends on any series of the then outstanding shares of
VTP and Parity Preferred Stock, including in the case of
any series of VTP the accumulated and unpaid dividends
for the current Term, shall have been paid or sufficient
funds for the payment thereof shall have been deposited
with the Auction Agent, at which time the voting rights
described in clause (a)(i) shall cease, subject always,
however, to the revesting of such voting power in the
holders of all shares of VTP and Voting Parity Preferred
Stock upon the further occurrence of any of the
circumstances described in clause (a)(i) above.
(iii) The term of office of all persons who are
directors of the Corporation at the time of such meeting
shall continue, notwithstanding the election of directors
at such meeting by the holders of shares of VTP and
Voting Parity Preferred Stock of the number of directors
which such holders are entitled to elect. The persons
elected by the holders of shares of VTP and Voting Parity
Preferred Stock, together with the incumbent directors
otherwise duly elected, shall constitute the duly elected
directors of the Corporation.
(iv) Directors elected by holders of VTP and any
Voting Parity Preferred Stock shall continue in office
until the next annual meeting of the Corporation's
shareholders, unless their term shall expire, or they
shall be removed, at an earlier date as provided in this
Section 7. Upon election or re-election by holders of
VTP and any Voting Parity Preferred Stock, such directors
will be elected for staggered terms in accordance with
the Certificate of Incorporation of the Corporation.
(v) Simultaneously with the expiration of the
Default Period, the term of office of the directors
elected by the holders of shares of VTP and such Voting
Parity Preferred Stock shall terminate, the number of
directors of the Corporation shall automatically be
decreased by a number equal to the number of directors
whose terms are so terminated, only the incumbent
directors otherwise duly elected shall constitute the
duly elected directors of the Corporation, and the right
of the holders of VTP and such Voting Parity Preferred
Stock to elect directors during a Default Period as
provided above shall cease, subject always, however, to
the revesting of such voting power in the holders of all
shares of VTP and Voting Party Preferred Stock upon the
further occurrence of any of the circumstances described
in clause (a)(i) above.
(vi) Within fifteen days of the accrual of any right
of the holders of shares of VTP and Voting Parity
Preferred Stock to elect directors upon the occurrence of
a Default Period as described in clause (a)(i) above, the
Corporation shall mail or cause to be mailed to the
holders of VTP and such Voting Parity Preferred Stock,
notice of a special meeting of stockholders for a date
not less than 10 days nor more than 60 days after the
date of such notice. If the Corporation does not mail or
cause to be mailed notice of such meeting as provided in
the next preceding sentence, a meeting may be called by
any holder or holders of 10% or more of the outstanding
shares of VTP or such Voting Parity Preferred Stock. The
Corporation shall notify the Auction Agent of the date on
which such right accrued, and such date shall be the
record date for determining the holders of stock entitled
to notice of and to vote at the special meeting. Holders
of all such stock shall vote in such elections on the
basis of one vote per $1,000 liquidation preference and
not cumulatively and the holder or holders of one-half of
the shares of such stock then outstanding, present in
person or by proxy, shall constitute a quorum for the
election of directors by them. At any such meeting or
adjournment thereof in the absence of a quorum, a
majority of the holders of such stock present in person
or by proxy shall have the power to adjourn the meeting
for the election of directors without notice, other than
an announcement at the meeting, until a quorum is
present.
(vii) With respect to the certain restrictions
described above shares of VTP shall not be deemed to be
Outstanding and the provisions of this Section 7 shall
not apply if (i) funds sufficient for the redemption of
such shares are irrevocably depositing with the Auction
Agent and a Notice of Redemption has been duly given by
the Corporation or (ii) such shares are held beneficially
by the Corporation or beneficially or of record by any
Affiliate.
(b) Removal of Directors Elected by Existing Holders of
Voting Parity Preferred Stock
Except as provided in paragraph (a)(iv) of this Section
7 and other than removal for cause, the directors elected by the
holders of shares of VTP and such Voting Parity Preferred Stock
shall (subject to the provisions of any applicable law) be subject
to removal only by the vote of the holders of a majority of the
shares of all series of VTP and such Voting Parity Preferred Stock
voting together as a single class. Any vacancy in the Board of
Directors of the Corporation occurring by reason of such removal or
otherwise may be filled by vote of a majority of the shares of all
series of VTP and such Voting Parity Preferred Stock, voting
together as a single class, in person or by proxy at a special
meeting of stockholders called and held in accordance with the
provisions set forth above, and, if not so filled, such vacancy
shall (subject to the provisions of any applicable law) be filled
by the remaining director elected by the holders of the shares of
all series of VTP and such Voting Parity Preferred Stock. "Removal
for Cause," as used herein, shall mean removal for dishonesty, a
breach of a fiduciary obligation to the Corporation or for any act
deemed materially prejudicial to the rights of the Corporation or
its shareholders.
(c) Maintenance of Available Board Positions
So long as any shares of either series of VTP are
outstanding the Corporation shall maintain at least two available
positions on the Board of Directors within the limits established
by the Corporation's Certificate of Incorporation.
8. General Provisions.
Unless otherwise required by law, Holders of shares of
VTP shall not have any relative rights or preferences or other
special rights against the Corporation other than those
specifically set forth herein. Holders of shares of VTP shall have
no preemptive rights. In the event that dividends are not timely
declared on the shares of VTP, the exclusive remedy for Holders of
such shares against the Corporation shall be as set forth herein
and in no event shall Holders of such shares have any right to
maintain a suit or proceeding against the Corporation in respect of
such dividends or damages for the failure to receive the same or
resulting from such noncompliance.
9. Auction Procedures.
(a) Certain Definitions
Capitalized terms not defined in this Section 9 shall
have the meanings specified in Section 2 hereof. As used herein,
the following terms shall have the following meanings, unless the
context otherwise requires:
(i) "Affiliate" shall mean any person controlled
by, in control of, or under common control with the
Corporation.
(ii) "Agent Member" shall mean the member of the
Securities Depository that will act on behalf of a Bidder
and is identified as such in such Bidder's Purchaser's
Letter.
(iii) "Auction" shall mean each periodic operation
of the procedures set forth in this Section 9.
(iv) "Auction Agent" shall mean Bankers Trust
Company or in lieu thereof, any of its successors,
pursuant to the Auction Agent Agreement, dated as of
February 8, 1989, between the Corporation and Bankers
Trust Company.
(v) "Auction Date" shall mean (i) in the case of an
Auction held at the end of a STAR Term, on the Business
Day next preceding the last day of such STAR Term, and
(ii) in the case of an Auction held at the end of a
Variable Term, on the fifth Business Day next preceding
the last day of such Variable Term.
(vi) "Auctioned VTP" shall mean all shares of a
series of VTP subject to an Auction on any Auction Date.
(vii) "Auction Procedures" shall mean the procedures
set forth in this Section 9.
(viii) "Available VTP" shall have the meaning
specified in clause (A) of Section 9(d)(i) below.
(ix) "Bid" shall have the meaning specified in
Section 9(b)(ii) below.
(x) "Bidder" shall have the meaning specified in
Section 9(b)(ii) below.
(xi) "Broker-Dealer" shall mean The First Boston
corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and any other broker-dealer, or other entity
permitted by law to perform the functions required of a
Broker-Dealer in this Section 9 that has been selected by
the Corporation and has entered into a Broker-Dealer
Agreement with the Auction Agent that remains effective.
(xii) "Broker-Dealer Agreement" shall mean an
agreement between the Auction Agent and a Broker-Dealer
pursuant to which such Broker-Dealer agrees to follow the
procedures specified in this Section 9.
(xiii) "Business Day" shall mean a day on which the
New York Stock Exchange is open for trading and which is
not a day on which banks in New York City are authorized
or required by law to close.
(xiv) "Commercial Paper Rate", on any date, shall
mean (i) the interest equivalent of the 60-day rate on
commercial paper placed on behalf of issuers whose
corporate bonds are rated "AA" by S&P or "Aa" by Moody's
or the equivalent of such rating by another rating
agency, as such 60-day rate is made available on a
discount basis or otherwise by the Federal Reserve Bank
of New York for the Business Day immediately preceding
such date, or (ii) in the event that the Federal Reserve
Bank of New York does not make available such a rate,
then the arithmetic average of the interest equivalent of
the 60-day rate on commercial paper placed on behalf of
such issuers, as quoted on a discount basis or otherwise
by the Commercial Paper Dealers to the Auction Agent as
of the close of business on the Business Day immediately
preceding such date. In the event that the Federal
Reserve Bank of New York does not make available such a
rate and if any Commercial Paper Dealer does not quote a
rate required to determine the Commercial Paper Rate, the
Commercial Paper Rate shall be determined on the basis of
the quotation or quotations furnished by the remaining
Commercial Paper Dealer or Commercial Paper Dealers and
any Substitute Commercial Paper Dealer or Substitute
Commercial Paper Dealers selected by the Corporation to
provide such rate or rates not being supplied by any
Commercial Paper Dealer or Commercial Paper Dealers, as
the case may be, or, if the Corporation does not select
any such Substitute Commercial Paper Dealer or Substitute
Commercial Paper Dealers, by the remaining Commercial
Paper Dealer of Commercial Paper Dealers. If the
Corporation shall adjust the number of days in a STAR
Term pursuant to Section 3(g)(ii), then (i) if the number
of days in a STAR Term after such adjustment shall be
fewer than 70 days, such rate shall be the interest
equivalent of the 60-day rate on such commercial paper,
(ii) if the number of days in a STAR Term after such
adjustment shall be 70 or more but fewer than 85, such
rate shall be the arithmetic average of the interest
equivalent of the 60-day and 90-day rates on such
commercial paper, (iii) if the number of days in a STAR
Term after such adjustment shall be 85 or more days but
fewer than 99, such rate shall be the interest equivalent
of the 90-day rate on such commercial paper and (iv) if
the number of days in a STAR Term shall be greater than
99, such rate will equal the interest equivalent of the
rate for commercial paper having a designated maturity
nearest the last day of such STAR Term, as published by
the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates"
or any successor publication, within five Business Days
of such date, under the heading "Commercial Paper," or,
if such statistical release is not published or is
otherwise not available, then the arithmetic average of
the interest equivalent of the rate on commercial paper
placed on behalf of issuers whose corporate bonds are
rated "AA" by S&P or "Aa" by Moody's (or the equivalent),
having a designated maturity nearest the last day of such
STAR Term, as quoted on a discount basis or otherwise by
the Commercial Paper Dealers (and/or one or more
Substitute Commercial Paper Dealers) for the close of
business on the Business Day immediately preceding such
date. For purposes of this definition, "interest
equivalent" means the equivalent yield on a 360-day basis
of a discount-basis security to an interest-bearing
security.
(xv) "Existing Holder", when used with respect to
shares of VTP, shall mean a person who has signed and
delivered a Purchaser's Letter and is listed as the
beneficial owner of such shares in the records of the
Auction Agent.
(xvi) "Hold Order" shall have the meaning specified
in Section 9(b)(ii) below.
(xvii) Maximum Applicable Rate", when used with
respect to any date, shall mean (i) with respect to an
Auction relating to a STAR Term for sa series of VTP, the
percentage of the Commercial Paper Rate and (ii) with
respect to an Auction relating to a Variable Term for a
series of VTP, the percentage of the Treasury Index Rate,
in each case at the close of business on the Business Day
next preceding such date, determined as set forth below,
based on the Prevailing Rating of the shares of VTP in
effect at the close of business on such Business Day:
STAR Term: Variable Term:
Percentage of Percentage of
Prevailing the Commercial the Treasury
Rating Paper Rate Index Rate
---------- -------------- ---------------
"aa3"/AA- or above 110% 130%
"a3"/A- 125% 140%
"Baa3"/BB- 150% 150%
"ba3"/BB- 200% 200%
Below "ba3"/BB- 250% 250%
In the case of ratings from the rating agencies that do not fall in
comparable categories, the applicable percentage shall be
determined on the basis of the lower rating.
(xviii) "Minimum Applicable Rate", when used with
respect to any date, shall mean (A) with respect to an
Auction relating to a Variable Term for a series of VTP,
50% of the Treasury Index Rate at the close of business
on the Business Day next preceding the Auction Date, and
(B) with respect to an Auction relating to a STAR Term
for a series of VTP, 58% of the Commercial Paper Rate at
the close of business on the Business Day next preceding
the Auction Date.
(xix) "Notice of Failed Transaction Auction" shall
have the meaning specified in Section 9(f)(i).
(xx) "Order" shall have the meaning specified in
Section 9(b)(ii) below.
(xxi) "Outstanding" shall mean for purposes of
these procedures, as of any date, any issued shares of
VTP with respect to each series except any such shares
acquired by the Corporation through redemption or
otherwise, or as to which the Corporation has given a
notice of redemption if the Corporation shall also have
irrevocably deposited the redemption price (including
accumulated and unpaid dividends) therefor with the
Auction Agent and given the Auction Agent irrevocable
instructions and authority to pay the redemption price
therefor or as to which the Corporation or any Affiliate
shall be an Existing Holder.
(xxii) "Potential Holder" shall mean a prospective
purchaser of shares of Auctioned VTP who shall have
executed and delivered a Purchaser's Letter.
(xxiii) "Prevailing Rating", when used to determine
the Maximum Applicable Rate, shall be:
(i) "aa3"/AA- or above if such shares of VTP
have a rating of "aa3" or better by Moody's and AA- or
better by S&P or the equivalent of both of such ratings
by a substitute rating agency or substitute rating
agencies selected by the Corporation as provided below;
(ii) if not "aa3"/AA- or above, then "a3"/A-
if such shares of VTP have a rating of "a3" or better by
Moody's and A- or better by S&P;
(iii) if not "aa3"/AA- or above or "a3"/A-,
then "baa3"/BB- if such shares of VTP have a rating of
"baa3" or better by Moody's and BBB- or better by S&P;
(iv) if not "aa3"/AA- or above, "a3"/A-, or
"baa3"/BBB-, then "ba3"/BB-, if such shares of VTP have
a rating of "ba3" or better by Moody's and BB- or better
by S&P; and
(v) if not "aa3"/AA- or above, "a3"/A-,
"baa3"/BBB-, or "ba3"/BB-, then below "ba3"/BB-;
provided that if either Moody's or S&P or both shall not
make any of such ratings available, the Corporation or
its successor shall select one or two nationally
recognized statistical rating organizations (as the term
is used in the rules and regulations of the Commission
under the Securities Exchange Act of 1934, as amended),
as the case may be, to act as a substitute rating agency
or substitute rating agencies, and the Corporation will
take all reasonable action to enable such rating agency
or rating agencies to make available the equivalent
rating or ratings for shares of each series. The
corporation will take all reasonable action necessary to
enable Moody's sand S&P to provide a rating for each
series of VTP.
(xxiv) "Purchaser's Letter" shall mean a letter
addressed to the Corporation, the Auction Agent, a
Broker-Dealer, and/or an Agent Member in the form of
Exhibit B to the Broker-Dealer Agreement.
(xxv) "Remaining Shares" shall have the meaning
specified in Section 9(e)(i).
(xxvi) "Securities Depository" shall mean The
Depository Trust Company and its successors and assigns
or any other securities depository selected by the
Corporation which agrees to follow the procedures
required to be followed by such securities depository in
connection with shares of VTP.
(xxvii) "Sell Order" shall have the meaning
specified in Section 9(b) below.
(xxviii) "Submission Deadline" shall mean 12:30
P.M., New York City time, ion each Auction date, or such
other time on the Auction Date specified by the Auction
Agent, by which Broker-Dealers are required to submit
Orders in writing to the Auction Agent.
(xxix) "Submitted Bid" shall have the meaning
specified in Section 9(d)(i) below.
(xxx) "Submitted Hold Order" shall have the meaning
specified in Section 9(d)(i) below.
(xxxi) "Submitted Order" shall have the meaning
specified in Section 9(d)(i) below.
(xxxii) "Submitted Sell Order: shall have the
meaning specified in Section 9(d)(i) below.
(xxxiii) "Sufficient Clearing Bids" shall have the
meaning specified in clause (B) of Section 9(d)(i) below.
(xxxiv) "Treasury Index Rate", on any date, shall
mean the interest equivalent of the sum of (i) the rate
for direct obligations of the United States ("Treasury
Notes") having a maturity of 1 year, 2 years, 3 years, 5
years, 7 years or 10 years (each being referred to herein
as a "Designated Maturity") which is equal to, or next
shorted than, the length of such Variable term (such
maturity being referred to herein as the "Base
Maturity"), as published by the Board of Governors of the
federal Reserve System in "Statistical Release
H.125(519), Selected Interest Rates" or any successor
publication within five Business Days preceding such
date, under the heading, "Treasury Constant Maturities"
or, if such statistical release is not yet published or
is otherwise not available, the arithmetic mean of the
secondary market bid rates as of approximately 3:300
P.M., New York City time, on the Business Day next
preceding such date, of three primary United States
government securities dealers obtained by the corporation
for the issue of Treasury Notes with a remaining maturity
equal to such Base Maturity, plus (ii) the product of (x)
the difference between the rate for the next longer
Designated Maturity and the rate for the Base maturity
and (y) a fraction the numerator of which is the
difference (expressed as a number of years or a fraction
of a year) between (1) the length of the Variable Term
and (2) the Base Maturity, and the denominator of which
is the difference (expressed as a number of years or a
fraction of a year) between (1) the Designated Maturity
next greater than the Base Maturity and (2) the Base
Maturity.
(xxxv) "Winning Bid Rate" shall have the meaning
specified in clause (C) of Section 9(d)(i) below.
(b) Orders by Existing Holders and Potential Holders
(i) Prior to the Submission Deadline on each
Auction Date, each Broker-Dealer, using a list of
Potential Holders that shall be maintained by such
Broker-Dealer in good faith for the purpose of conducting
a competitive Auction, shall contact by telephone or
otherwise Potential Holders on such list to notify such
Potential Holders whether the next Term is a STAR Term or
a Variable Term and, if applicable, of the length of the
next Term and any optional redemption terms applicable to
a designated Variable Term and to determine the number of
shares, if any, of Auctioned VTP that each such Potential
Holder offers to purchase if the Applicable Rate for the
next succeeding Term is not less than the rate or rates
per annum specified by such Potential Holder.
(ii) Prior to the Submission Deadline on each
Auction Date, each Existing Holder may submit to a
Broker-Dealer by telephone or otherwise information as
to:
(A) The number of Outstanding shares, if any,
of Auctioned VTP held by such Existing Holder that
such Existing Holder desires to continue to hold
without regard to the Applicable Rate for the next
succeeding Term;
(B) The number of Outstanding shares, if any,
of Auctioned VTP that such Existing Holder desires
to continue to hold if the Applicable Rate for the
next Term is not less than the rate per annum
specified by such Existing Holder; and/or
(C) The number of Outstanding shares, if any,
of Auctioned VTP held by such Existing Holder that
such Existing Holder offers to sell without regard
to the Applicable Rate for the next succeeding
Term.
For purposes hereof, the communication to a Broker-Dealer
of the information referred to in this Section 9(b)(ii)
is hereinafter referred to as an "Order" and each
Existing Holder and each Potential Holder placing an
Order is hereinafter referred to as a "Bidder"; an Order
containing the information referred to in clause (A) of
this Section 9(b)(ii) is hereinafter referred to as a
"Hold Order"; an Order containing the information
referred to in clause (B) of this Section 9(b)(ii) is
hereinafter referred to as a "Bid"; and an Order
containing the information referred to in clause (c) of
this Section 9(b)(ii) is hereinafter referred to as a
"Sell Order". In addition, for purposes of these Auction
Procedures, unless the context otherwise requires; all
references to Terms and dividend rates shall be deemed to
refer to such periods and rates for the shares of
Auctioned VTP.
(iii) As a condition to participating in any
Auction, each prospective purchaser of shares of
Auctioned VTP shall be required to sign and deliver one
copy of a Purchaser's Letter to a Broker-Dealer, in which
such prospective purchaser will agree, among other
things, that:
(A) It agrees to be bound by the Auction
Procedures and understands that it has the right to
obtain a copy of the Certificate of Designation
from the Auction Agent or a Broker-Dealer upon
request;
(B) Any Bid or Sell Order placed by it shall
constitute an irrevocable offer by it to purchase
or sell the shares of VTP subject to such Bid or
Sell Order, respectively, or such lesser or greater
number of shares of VTP as it shall be required to
purchase or sell, as a result of such Auction in
accordance with the Auction Procedures, and that if
it fails to place a Bid or Sell Order with respect
to shares of VTP owned by it with a Broker-Dealer
on any Auction Date for such shares or a Broker-
Dealer to which it communicates a Bid or Sell Order
fails to submit such Bid or Sell Order to the
Auction Agent it shall be deemed to have placed a
Hold Order with respect to such shares of VTP as
described in the Auction Procedures. It authorizes
any Broker-Dealer that submits a Bid or Sell Order
as its agent in Auctions to execute contracts for
the purchase or sale of shares of VTP covered by
such Bid or Sell Order. It recognizes that the
payment by such Broker-Dealer for shares of VTP
purchased on its behalf shall not relieve it of any
liability to such Broker-Dealer for payment of such
shares.
(C) Ownership of shares of Auctioned VTP may
be represented by a global certificate registered
in the name of the Securities Depository or its
nominee; that it will not be entitled to receive
any certificate representing shares of Auctioned
VTP; that its ownership of any shares of Auctioned
VTP will be maintained in book-entry form by the
Securities Depository for the account of its Agent
Member, which in turn will maintain records of its
beneficial ownership; that during a STAR Term in
effect for any series of VTP, shares of such series
may only be held or transferred in whole units of
100 shares and it authorizes the Auction Agent to
modify any Order submitted by it so as to give full
effect to such restriction. It will authorize and
instruct its Agent Member to disclose to the
Auction Agent such information concerning its
beneficial ownership of shares of VTP as the
Auction Agent shall request. It understands that a
restrictive legend will be placed on certificates
representing the shares of VTP and stop transfer
instructions will be issued to the transfer agent
and/or registrar, and it will comply with any other
transfer restrictions or other related procedures.
(D) It will sell, transfer or otherwise
dispose of any shares of VTP held by it from time
to time only (1) pursuant to a Bid or Sell Order
placed in an Auction, (2) to or through a Broker-
Dealer or (3) to a person that has signed and
delivered, or caused to be delivered on its behalf,
to the Auction Agent a Purchaser's Letter; provided
that in the case of all transfers (other than
pursuant to Auctions) such purchaser or its Broker-
Dealer or its Agent Member shall advise the Auction
Agent of such transfer.
(iv) During any period for which a STAR Term has
been selected with respect to any series of VTP, Holders
of such series must hold or transfer shares of such
series only in whole units of 100 shares. In any Auction
relating to a STAR Term, the Auction Agent shall be
authorized to conduct the Auction in accordance with the
following procedures: (i) any Hold Order which would
result in an Existing Holder holding a number of shares
not evenly divisible by 100 will be deemed to be a Sell
Order to the extent necessary to reduce such Existing
Holder's shares to whole units of 100 shares, (ii) any
Sell Order which, if accepted, would result in an
Existing Holder holding a number of shares not evenly
divisible by 100 will be deemed to be a Sell Order for
that greater number of shares necessary to result in such
Existing Holder holding shares in whole units of 100
shares and (iii) any Bid Order which, if accepted, would
result in an Existing Holder or a Potential Holder
holding a number of shares not evenly divisible by 100
will be deemed to be a Bid for that lesser number of
shares necessary to result in such Bidder holding shares
in whole units of 100 shares.
(c) Submission of Orders by Broker-Dealers to the
Auction Agent
(i) Each Broker-Dealer shall submit in writing to
the Auction Agent prior to the Submission Deadline on
each Auction Date all Orders obtained by such Broker-
Dealer for the Auction to be conducted on such Auction
Date and specifying with respect to each Order:
(A) the name of the Bidder placing such
Order;
(B) the aggregate number of shares of
Auctioned VTP that are subject to such Order;
(C) to the extent that such Bidder is an
Existing Holder, the number of shares, if any, of
Auctioned VTP subject to any:
(1) Hold Order placed by such Existing
Holder;
(2) Bid placed by such Existing Holder
and the rate specified in such Bid; and
(3) Sell Order placed by such Existing
Holder; and
(D) to the extent that such Bidder is a
Potential Holder, the rate specified in such
Potential Holder's Bid.
(ii) The Auction Agent shall, if necessary, round
any rate specified in any Bid up to the next highest one-
thousandth (.001) of 1%.
(iii) If an Order or Orders covering all of the
Outstanding shares of Auctioned VTP held by an Existing
Holder is not submitted to the Auction Agent for any
reason prior to the Submission Deadline, the Auction
Agent shall deem a Hold Order to have been submitted on
behalf of such Existing Holder covering the number of
Outstanding shares of Auctioned VTP held by such Existing
Holder and not subject to any Order submitted to the
Auction Agent.
(iv) If one or more Orders covering in the aggregate
more than the number of Outstanding shares of Auctioned
VTP held by an Existing Holder are submitted to the
Auction Agent, such Orders shall be considered valid as
follows and in the following order of priority:
(A) any Hold Order submitted on behalf of
such Existing Holder shall be considered valid up
to and including the number of Outstanding shares
of Auctioned VTP held by such Existing Holder,
provided that if more than one Hold Order is
submitted on behalf of such Existing Holder and the
number of shares of Auctioned VTP subject to such
Hold Orders exceeds the number of Outstanding
shares of Auctioned VTP held by such Existing
Holder, the number of Outstanding shares of
Auctioned VTP subject to each such Hold Order shall
be reduced pro rata so that such Hold Orders shall
cover the number of Outstanding shares of Auctioned
VTP held by such Existing Holder;
(B) (1) any Bid shall be considered valid up
to and including the excess of the number of
Outstanding shares of Auctioned VTP held by
such Existing Holder over the number of shares
of Auctioned VTP subject to Hold Orders
referred to in clause (A) above;
(2) subject to subclause (1) above, if
more than one Bid with the same rate is
submitted on behalf of such Existing Holder
and the number of Outstanding shares of
Auctioned VTP subject to such Bids is greater
than such excess, the number of shares of
Auctioned VTP subject to each such Bid shall
be reduced pro rata so that such Bids shall
cover the number of shares of Auctioned VTP
equal to such excess;
(3) subject to subclause (1) above, if
more than one Bid with different rates is
submitted on behalf of such Existing Holder,
such Bids shall be considered valid in the
ascending order of their respective rates; and
(4) in any such event, the number, if
any, of such Outstanding shares of Auctioned
VTP subject to Bids not valid under this
clause (B) shall be treated as the subject of
a Bid by a Potential Holder at the rate
therein specified; and
(C) any Sell Order shall be considered valid
up to and including the excess of the number of
Outstanding shares of Auctioned VTP held by such
Existing Holder over the number of shares of
Auctioned VTP subject to Hold Orders referred to in
clause (A) above and valid Bids referred to in
clause (B) above; provided that if more than one
Sell Order is submitted on behalf of any Existing
Holder and the number of shares of Auctioned VTP
subject to such Sell Orders is greater than such
excess, the number of shares of Auctioned VTP
subject to such Sell Orders shall be reduced pro
rata so that such Sell Orders shall cover the
number of shares of Auctioned VTP equal to such
excess. Notwithstanding the foregoing, the Auction
Agent is authorized to conduct any Auction
preceding a STAR Term so as to result in all shares
of any series to which a STAR Term relates being
held only in whole units of 100 shares.
(v) If more than one Bid is submitted on behalf of
any Potential Holder, each Bid submitted shall be deemed
a separate Bid with the rate and number of shares of
Auctioned VTP specified therein.
(d) Determination of Sufficient Clearing Bids, Winning
Bid Rate and Applicable Rate
(i) Not earlier than the Submission Deadline on
each Auction Date, the Auction Agent shall assemble all
Orders submitted or deemed submitted to it by the Broker-
Dealers (each such Order as submitted or deemed submitted
by a Broker-Dealer being hereinafter referred to
individually as a "Submitted Hold Order," a "Submitted
Bid," or a "Submitted Sell Order," as the case may be, or
as a "Submitted Order") and shall determine:
(A) the excess of the total number of
Outstanding shares of Auctioned VTP over the number
of shares of Auctioned VTP that are the subject of
Submitted Holder Orders (such excess being
hereinafter referred to as the "Available VTP");
(B) from the Submitted Orders whether the
number of Outstanding shares of Auctioned VTP that
are the subject of Submitted Bids by Potential
Holders specifying one or more rate not higher than
the Maximum Applicable Rate is equal to or exceeds
the number of Outstanding shares of Auctioned VTP,
that are the subject of Submitted Sell Orders
(including the number of shares subject to Bids by
Existing Holders specifying one or more rates
higher than the Maximum Applicable Rate), and if
such excess or such equality exists, such Submitted
Bids are hereinafter referred to collectively as
"Sufficient Clearing Bids"; and
(C) if Sufficient Clearing Bids exist, the
lowest rate specified in the Submitted Bids (the
"Winning Bid Rate") which if:
(1) each Submitted Bid from Existing
Holders specifying such Winning Bid Rate and
all other Submitted Bids from Existing Holders
specifying lower rates were accepted, thus
entitling such Existing Holders to continue to
hold the Outstanding shares of Auctioned VTP
that are the subject of such Submitted Bids;
and
(2) each Submitted Bid from Potential
Holders specifying such Winning Bid Rate and
all other Submitted Bids from Potential
Holders specifying lower rates were accepted,
thus entitling such Potential Holders to
purchase the shares of Auctioned VTP that are
the subject of such Submitted Bids;
would result in Existing Holders described in
subclause (1) above continuing to hold an aggregate
number of Outstanding shares of Auctioned VTP that,
when added to the number of shares of Auctioned VTP
of such series to be purchased by such Potential
Holders described in subclause (2) above, would
equal not less than the Available VTP of such
series.
(ii) Promptly after the Auction Agent has made the
determinations pursuant to Section 9(d)(i), the Auction
Agent shall advise the Corporation of the Minimum
Applicable Rate for the next succeeding Term as follows:
(A) if Sufficient Clearing Bids exist, the
Applicable Rate for the next succeeding Term shall
be equal to the Winning Bid Rate so determined;
(B) if Sufficient Clearing Bids do not exist,
the Applicable Rate for the next succeeding Term
shall be equal to:
(1) the Maximum Applicable Rate for a
one-year Variable Term in the case of an
Auction occurring subsequent to a Variable
Term; and
(2) the Maximum Applicable Rate for a
STAR Term in the case of Auction occurring
subsequent to a STAR Term; and
(C) if all of the shares of Auctioned VTP are
the subject of Submitted Hold Orders, the
Applicable Rate for the next succeeding Term shall
be equal to the Minimum Applicable Rate on such
Auction Date.
(e) Acceptance and Rejection of Orders and Allocation
of Shares
Based on the determinations made pursuant to Section
9(d)(i), the Submitted Bids and Submitted Sell Orders shall be
accepted or rejected and the Auction Agent shall take such other
action as set forth below:
(i) If Sufficient Clearing Bids have been made,
subject to the provisions of Section 9(e)(iv), Submitted
Bids and Submitted Sell Orders shall be accepted or
rejected in the following order of priority and all other
Submitted Bids shall be rejected:
(A) the Submitted Sell Orders of each
Existing Holder shall be accepted and the Submitted
Bid of each Existing Holder specifying any rate
that is higher than the Winning Bid Rate shall be
rejected, thus requiring each such Existing Holder
to sell the shares of Auctioned VTP subject to such
Submitted Sell Orders or Submitted Bids;
(B) the Submitted Bids of each Existing
Holder specifying any rate that is lower than the
Winning Bid Rate shall be accepted, thus entitling
each such Existing Holder to continue to hold the
shares of Auctioned vtp subject to such Submitted
Bids;
(C) the Submitted Bids of each Potential
Holder specifying any rate that is lower than the
Winning Bid Rate shall be accepted and such
Potential Holder shall purchase the shares of
Auctioned VTP subject to such Submitted Bids;
(D) the Submitted Bids of each Existing
Holder specifying a rate that is equal to the
Winning Bid Rate shall be accepted, thus entitling
such Existing Holder to continue to hold the
Outstanding shares of Auctioned VTP subject to such
Submitted Bids, unless the number of Outstanding
shares of Auction VTP subject to all such Submitted
Bids shall be greater than the number of shares of
Auctioned VTP equal to the excess of the Available
VTP over the number of shares of Auctioned VTP
subject to Submitted Bids described in clauses (B)
and (C) of this Section 9(e)(i) (the "Remaining
Shares"). In such event such Existing Holder shall
be required to sell shares of Auctioned VTP subject
to such Submitted Bids, but only in an amount equal
to the difference between (1) the number of
Outstanding shares of Auctioned VTP then held by
such Existing Holder subject to such Submitted Bids
and (2) the product of (x) the number of Remaining
Shares and (y) a fraction, the numerator of which
shall be the number of Outstanding shares of
Auctioned VTP held by such Existing Holder subject
to such Submitted Bids and the denominator of which
shall be the number of Outstanding shares of
Auctioned VTP subject to such Submitted Bids made
by all such Existing Holders that specified a rate
equal to the Winning Bid Rate; and
(E) the Submitted Bids of each Potential
Holder specifying a rate that is equal to the
Winning Bid Rate shall be accepted, but only in an
amount equal to the product of (i) the difference
between the Available VTP and the number of
Outstanding shares of Auctioned VTP subject to
Submitted Bids described in clauses (B), (C) and
(D) of this Section 9(e)(i) and (ii) a fraction,
the numerator of which shall be the number of
Outstanding shares of Auctioned VTP subject to such
Submitted Bids of such Potential Holder and the
denominator of which shall be the number of
Outstanding shares of Auctioned VTP subject to such
Submitted Bids made by all such Potential Holders
that specified a rate equal to the Winning Bid
Rate.
(ii) Except as described in clause (iii) below, and
subject to the provisions of Section 9(e)(iv), if
Sufficient Clearing Bids have not been made in any
Auction, Submitted Bids and Submitted Sell Orders shall
be accepted or rejected in the following order of
priority and all other Submitted Bids shall be rejected:
(A) the Submitted Bids of each Existing
Holder specifying any rate that is equal to or
lower than the Maximum Applicable Rate shall be
accepted, thus entitling such Existing Holder to
continue to hold the Outstanding shares of
Auctioned VTP subject to such Submitted Bids;
(B) the Submitted Bids of each Potential
Holder specifying any rate that is equal to or
lower than the Maximum applicable rate shall be
accepted and such Potential Holder shall purchase
the number of shares of Auctioned VTP subject to
such Submitted Bids; and
(C) the Submitted Bids of each Existing
Holder specifying any rate that is higher than the
Maximum Applicable Rate shall be rejected, thus
requiring each such Existing Holder to sell the
Outstanding shares of Auctioned VTP subject to such
Submitted Bids, and the Submitted Sell Orders of
each Existing Holder shall be accepted, in both
cases only in an amount equal to the difference
between (1) the number of Outstanding shares of
Auctioned VTP then held by such Existing Holder
subject to such Submitted Bids or Submitted Sell
Orders and (2) the product of (x) the difference
between the Available VTP and the aggregate number
of Outstanding shares of Auctioned VTP subject to
Submitted Bids described in clauses (A) and (B) or
this Section 9(e)(ii) and (y) a fraction, the
numerator of which shall be the number of
Outstanding shares of Auctioned VTP held by such
Existing Holder subject to such Submitted Bids or
Submitted Sell Orders and the denominator of which
shall be the number of Outstanding shares of
Auctioned VTP subject to all such Submitted Bids
and Submitted Sell Orders.
(iii) If Sufficient Clearing Bids do not exist in an
Auction for a series of VTP (i) for a subsequent STAR
Term immediately following a Variable Term or (ii) for a
subsequent Variable Term immediately following a STAR
Term, the Holders of such series will continue to hold
their shares of Auctioned VTP of such series on such
Auction Date with respect to such series irrespective of
any Orders made by Existing Holders or by Potential
Holders.
(iv) If, as a result of the procedures described in
Section 9(b)(iv), 9(c), 9(e)(i) or 9(e)(ii), any Existing
Holder would be entitled or required to sell, or any
Potential Holder would be entitled or required to
purchase, a fraction of a share of Auctioned VTP on any
Auction Date, the Auction Agent shall, in such manner as,
in its sole discretion, it shall determine, round up or
down the number of shares of Auctioned VTP to be sold or
purchased by any Existing Holder or Potential Holder on
such Auction Date so that the number of shares of
Auctioned VTP sold or purchased by each Existing Holder
or Potential Holder on such Auction Date shall be whole
shares of Auctioned VTP, even if such allocation results
in one or more of such Potential Holders not purchasing
shares of Auctioned VTP on such Auction Date or one or
more Existing Holders selling all shares of VTP
previously held by him.
(v) Based on the results of each Auction, the
Auction Agent shall determine the aggregate number of
Outstanding shares of Auctioned VTP to be sold by
Potential Holders and Existing Holders on whose behalf
each Broker-Dealer submitted Bids or Sell Orders, and,
with respect to each Broker-Dealer, to the extent that
such aggregate number of Outstanding shares to be
purchased and such aggregate number of Outstanding shares
to be sold differ, determine to which of the Broker-
Dealer or Broker-Dealers acting for one or more
purchasers such Broker-Dealer shall deliver by book
entry, or from which other Broker-Dealer or Broker-Dealer
acting for one or more sellers such Broker-Dealer shall
receive by book entry, as the case may be, Outstanding
shares of Auctioned VTP.
(f) Failed Transition Auction Procedure
(i) In connection with (A) an Auction relating to
a STAR Term for a series of VTP at the end of a Variable
Term or (B) an Auction relating to a Variable Term for a
series of VTP at the end of a STAR Term, for which
Sufficient Clearing Bids do not exist, the Auction Agent
shall mail, within two Business Days of such Auction, a
written notice of such failed Auction by first-class
mail, postage prepaid, to each Holder with respect to
such series (a "Notice of Failed Transition Auction").
The Corporation shall provide the Auction Agent with
written notice of the information to be contained in the
Notice of Failed Transition Auction at least one day
prior to the date the Notice of Failed Transition Auction
is mailed to such Holders. For the purposes of the
calculation of the date on which notice is given pursuant
to this Section 9(f)(i), a Notice of Failed Transition
Auction shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage
prepaid, to such Holders. Each Notice of Failed
Transition Auction shall include a statement setting
forth (1) the date of such failed Auction, (2) that
Sufficient Clearing Bids did not exist, (3) that all
Submitted Bids were rejected, (4) that all Outstanding
shares deemed to have been the subject of Sell Orders
pursuant to Section 9(b)(ii) hereof were not sold and
shall continue to be held by such Holders of such shares
and (5) that the Applicable Rate for the succeeding Term
with respect to such shares shall be the Maximum
Applicable Rate.
(ii) The Corporation shall be entitled to receive,
from time to time, from the Auction Agent the interest,
if any earned on any monies deposited with the Auction
Agent by Bidders who have submitted successful Bids at
any Auctions, and neither the Holders of such shares nor
the Bidders shall have any claim to any such interest.
With regard to any such funds which are unclaimed by
Holders of such shares at the end of six months from such
deemed sales date, the Auction Agent shall, to the extent
permitted by law and upon demand of the Corporation, pay
over to the relieved of all responsibility to the Holders
of such shares and the Holders of such shares so sold
shall thereafter be entitled to look only to the
Corporation for payment thereof.
(g) Participation in Auctions
Neither the Corporation nor any Affiliate may submit an
Order in any Auction.
(h) Maintenance of Auction Agent
The Corporation shall use its best efforts to maintain an
Auction Agent with respect to each series of VTP pursuant to an
agreement containing terms and conditions no less favorable to the
Holders of the shares of VTP than the terms of the Auction Agent
Agreement.
(i) Miscellaneous
The Board of Directors of the Corporation may interpret
or adjust the provisions of this Section 9 to resolve any
inconsistency or ambiguity, remedy any formal defect or make any
other change or modification which does not adversely affect the
rights of Existing Holders of Auctioned VTP which may be revealed
or arise in connection with the Auction Procedures, and if any
inconsistency, ambiguity or formal defect reflects an incorrect
provision hereof, the Corporation may amend the terms of the VTP
set forth herein, in any manner consistent with the Oklahoma
General Corporation Act.
An Existing Holder (A) may sell, transfer or otherwise
dispose of such shares of Auctioned VTP only pursuant to a Bid or
Sell Order in accordance with the procedures and restrictions
described in this Section 9 or to or through a Broker-Dealer or to
a person that has delivered a signed copy of a Purchaser's Letter
to the Auction Agent, provided that in the case of all dispositions
other than pursuant to Auctions such purchaser or its Broker-Dealer
or its Agent Member advises the Auction Agent of such disposition,
and (B) shall have the ownership of the shares of Auctioned VTP
held by it maintained in book-entry form by the Securities
Depository in the account of its Agent Member, which in turn will
maintain records of such Existing Holder's beneficial ownership.
(j) Headings of Subdivisions
The headings of the various subdivisions of this Section
9 are for convenience of reference only and shall not affect the
interpretation of any of the provisions hereof.
Division B - Common Stock. Each share of Common Stock of
the Corporation shall be equal in all respects to each other share.
The holders of Common Stock shall be entitled to one vote for each
share of Common Stock held with respect to all matters as to which
the Common Stock is entitled to be voted. Except as otherwise
required by law, the holders of Common Stock shall vote together
with the holders of shares of Preferred Stock, if any have been
issued, and all series thereof who are entitled to vote, and not
separately by class.
Subject to the preferential and other dividend rights, if
any, applicable to the shares of Preferred Stock, the holders of
the Common Stock shall be entitled to receive such dividends
(payable in cash, stock or otherwise) as may be declared on the
Common Stock by the Board of Directors at any time or from time to
time out of any funds legally available therefor.
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, after distribution in
full of the preferential and/or other amounts to be distributed to
the holders of the shares of Preferred Stock, if any shall have
been issued, the holders of Common Stock shall be entitled to
receive all of the remaining assets of the Corporation available
for distribution to its shareholders, ratably in proportion to the
number of shares of Common Stock held by them. A liquidation,
dissolution or winding up of the Corporation, as such terms are
used in this subparagraph, shall not be deemed to be occasioned by
or to include any consolidation or merger of the Corporation with
or into any other corporation or corporations or a sale, lease, or
conveyance of all or a part of the assets of the Corporation or any
liquidation, dissolution and/or winding up of the Corporation in
connection therewith.
ARTICLE SIX
The amount of stated capital with which the corporation
will begin business is $500.00, which has been fully paid in.
ARTICLE SEVEN
The number and class of shares to be allotted by the
corporation before it shall begin business and the consideration to
be received by the corporation therefor, are:
Consideration to be
Class of Shares Number of Shares Received Therefor
Common 200 $500.00
ARTICLE EIGHT
The number of Directors which shall constitute the whole
Board shall be not more than twenty (20) and not less than three
(3). The Board of Directors shall from time to time by a vote of
a majority of the Directors then in office fix within the maximum
and minimum the number of directors which all constitute the Board.
The Board of Directors shall be divided into three classes as
nearly equal in number as possible with the term of office of one
class expiring each year, and that at each Annual Meeting of
Shareholders, the successors to the class of Directors whose terms
shall then expire shall be elected to hold office for a term
expiring at the third succeeding annual meeting. Directors shall
be chosen by a plurality of votes cast in an election for
Directors.
ARTICLE NINE
For the regulation of the internal affairs of the
corporation, it is provided as follows:
Authority to adopt, amend, alter, repeal or readopt
bylaws for the government of the corporation is, subject to the
right of the shareholders to alter or repeal such bylaws, hereby
vested in the board of directors.
No right to dissent shall exist in behalf of any
shareholders as to all or any corporate action if such action be
approved by the vote or written consent of the holders of at least
ninety percent (90%) of all outstanding shares of the corporation,
or in behalf of the holders of the shares of any class or classes
if such corporation action be approved by the written consent of
the holders of at least ninety percent (90%) of all outstanding
shares and of at least three-fourths (3/4) of the shares of such
class or classes.
ARTICLE TEN
Section 1. Vote Required for Certain Business
Combinations.
A. Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law, this Certificate
of Incorporation or otherwise, and except as otherwise expressly
provided in Section 2 of this Article Ten:
(i) any merger or consolidation of the Corporation
or any Subsidiary (as hereinafter defined) with (a) any
Interested Shareholder (as hereinafter defined) or (b)
any other corporation (whether or not itself an
Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of transactions) to or with any Interested
Shareholder or any Affiliate of any Interested
Shareholder of any assets of the Corporation or any
Subsidiary having an aggregate Fair Market Value (as
hereinafter defined) of $1,000,000 or more; or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of
transactions) of any securities of the Corporation or any
Subsidiary (other than pursuant to any stock option or
similar plans now in effect or hereafter adopted by the
Corporation and approved by vote of the shareholders of
the Corporation solicited substantially in accordance
with the rules and regulations then in effect under
Section 14 of the Securities Exchange Act of 1934) to any
Interested Shareholder or any Affiliate of any Interested
Shareholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate
Fair Market Value of $2,000,000 or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by
or on behalf of any Interested Shareholder or any
Affiliate of any Interested Shareholder; or
(v) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any
class of equity or convertible securities of the
Corporation or any Subsidiary which is directly or
indirectly owned by any Interested Shareholder or any
Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least 80%
of the voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), including the holders of at least
80% of the outstanding Common Stock not held by Interested
Shareholders, voting together as a single class. Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or
in any agreement with any national securities exchange or
otherwise.
B. Definition of "Business Combination". The term
"Business Combination" as used in this Article Ten shall mean any
transaction that is referred to in any one or more of clauses (i)
through (v) of paragraph A of this Section 1.
Section 2. When Higher Vote is Not Required. The
provisions of Section 1 of this Article Ten shall not be applicable
to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required
by law and any other provision of this Certificate of
Incorporation, if all of the conditions specified in either of the
following paragraphs A and B are met:
A. Approval by Continuing Directors. The Business
Combination shall have been approved by three-fourths (3/4) of the
Continuing Directors (as hereinafter defined).
B. Price and Procedure Requirements. All of the
following conditions shall have been met:
(i) The aggregate amount of cash and the Fair Market
Value as of the date of the consummation of the Business
Combination of consideration other than cash to be
received per share by holders of Common Stock in such
Business Combination shall be at least equal to the
highest of the following:
(a) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid
by the Interested Shareholder for any shares of
Common Stock acquired by it (1) within the two-year
period immediately prior to the first public
announcement of the proposal of the Business
Combination (the "Announcement Date") or (2) in the
transaction in which it became an Interested
Shareholder (the date of such transaction being
referred to herein as the "Determination Date"),
whichever is higher; or
(b) the Fair Market Value per share of Common
Stock on the Announcement Date or the Determination
Date, whichever is higher.
(ii) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to
be received per share by holders of shares of any other
class of outstanding Voting Stock shall be at least equal
to the highest of the following (it being intended that
the requirements of this paragraph B(ii) shall be
required to be met with respect to every class of
outstanding Voting Stock, whether or not the Interested
Shareholder has previously acquired any shares of a
particular class of Voting Stock):
(a) (if applicable) the highest per share
price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid
by the Interested Shareholder for any shares of
such class of Voting Stock acquired by it (1)
within the two-year period immediately prior to the
Announcement Date or (2) in the transaction in
which it became an Interested Shareholder,
whichever is higher;
(b) (if applicable) the highest preferential
amount per share to which the holders of shares of
such class of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; or
(c) the Fair Market Value per share of such
class of Voting Stock on the Announcement Date or
on the Determination Date, whichever is higher.
(iii) The consideration to be received by holders of
a particular class of outstanding Voting Stock (including
Common Stock) shall be in cash or in the same form as the
Interested Shareholder has previously paid for the
largest number of shares of such class of Voting Stock.
(iv) After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of
such Business Combination: (a) except as approved by
three-fourths (3/4) of the Continuing Directors, there
shall have been no failure to declare and pay at the
regular date therefor any full quarterly dividends
(whether or not cumulative) on any outstanding Preferred
Stock; (b) there shall have been (1) no reduction in the
annual rate of dividends, if any, paid on the Common
Stock (except as necessary to reflect any subdivision of
the Common Stock), except as approved by three-fourths
(3/4) of the Continuing Directors, and (2) no failure to
increase the annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock
split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number
of outstanding shares of the Common Stock, unless the
failure so to increase such annual rate is approved by
three-fourths (3/4) of the Continuing Directors; and (c)
such Interested Shareholder shall have not become the
beneficial owner of any additional shares of Voting Stock
except as part of the transaction which results in such
Interested Shareholder becoming an Interested
Shareholder.
(v) After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall
not have received the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of
or in connection with such Business Combination or
otherwise.
(vi) A proxy or information statement, describing
the proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations)
shall be prepared and mailed by the Corporation, at the
expense of the Interested Shareholder, to public
shareholders of the Corporation at least 30 days prior to
the meeting at which such Business Combination will be
voted upon (whether or not such proxy or information
statement is required to be mailed pursuant to such Act
or subsequent provisions).
If the conditions of paragraph B(i)-(v) of this Section
have been met, then the provisions of Section 1 of this Article Ten
shall not be applicable as to the approval of such Business
Combination. If any of such conditions have not been met, then
Section 1 of this Article Ten shall be applicable.
Section 3. Certain Definitions. For the purposes of
this Article Ten:
A. A "person" shall mean any individual, firm,
corporation or other entity.
B. "Interested Shareholder" shall mean any person (other
than the Corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of more than 10% of the voting power of the outstanding
Voting Stock; or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of 10% or more of the voting power of the
then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded
to any shares of Voting Stock that were at any time
within the two-year period immediately prior to the date
in question owned beneficially by any Interested
Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933.
C. A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) owns beneficially,
directly or indirectly; or
(ii) which such person or any of its 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 or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (b) the right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are owned beneficially, directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of
Voting Stock.
D. For the purposes of determining whether a person is
an Interested Shareholder pursuant to paragraph B of this Section
3, the number of shares of Voting Stock deemed to be outstanding
shall include shares deemed owned through application of paragraph
C of this Section 3 but shall not include any other shares of
Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
E. "Affiliate" or "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 in
effect on December 31, 1984.
F. "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Interested Shareholder set forth in
paragraph B of this Section 3, the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
G. "Continuing Director" means any member of the Board
of Directors of the Corporation (the "Board") who is unaffiliated
with the Interested Shareholder and was a member of the Board prior
to the time that the Interested Shareholder became an Interested
Shareholder, and any successor of a Continuing Director who is
unaffiliated with the Interested Shareholder and is recommended to
succeed a Continuing Director by a majority of Continuing Directors
then on the Board.
H. "Fair Market Value" means: (i) in the case of stock,
the highest closing sale price during the 30-day period ending on
the date in question of a share of such stock on the Composite Tape
for New York Stock Exchange-Listed Stocks, or, if such stock is not
quoted on the Composite Tape, on the New York Stock Exchange, or,
if such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the Securities
Exchange Act of 1934 on which such stock is listed, or, if such
stock is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the 30-day
period ending on the date in question on the National Association
of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock
as determined by the Board in good faith; and (ii) in the case of
property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board in good
faith.
I. In the event of any Business Combination in which the
Corporation survives, the phrase "other consideration to be
received" as used in paragraphs B(i) and (ii) of Section 2 of this
Article Ten shall include the shares of Common Stock and/or the
shares of any other class of outstanding Voting Stock retained by
the holders of such shares.
Section 4. Powers of Continuing Directors. The
Continuing Directors of the Corporation shall have the power and
duty to determine for the purposes of this Article Ten, on the
basis of information known to them after reasonable inquiry, (A)
whether a person is an Interested Shareholder, (B) the number of
shares of Voting Stock owned beneficially by any person, (C)
whether a person is an Affiliate or Associate of another and (D)
whether the assets that are the subject of any Business Combination
have an aggregate Fair Market Value of $1,000,000 or more, or the
consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business
Combination has an aggregate Fair Market Value of $2,000,000 or
more.
ARTICLE ELEVEN
Section 1. Prevention of "Greenmail". Any direct or
indirect purchase or other acquisition by the Corporation of any
Equity Security (as hereinafter defined) of any class from any
Interested Securityholder (as hereinafter defined) who has
beneficially owned such securities for less than two years prior to
the date of such purchase or any agreement in respect thereof
shall, except as hereinafter expressly provided, require the
affirmative vote of the holders of at least a majority of the
voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors
(the "Voting Stock"), voting together as a single class (it being
understood that for the purposes of this Article Eleven, each share
of the Voting Stock shall have the number of votes granted to it
pursuant to Article Five of this Certificate of Incorporation).
Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be
specified, by law or any agreement of any national securities
exchange, or otherwise, but no such affirmative vote shall be
required with respect to any purchase or other acquisition of
securities made as part of a tender or exchange offer by the
Corporation to purchase securities of the same class made on the
same terms to all holders of such securities and complying with the
applicable requirements of the Securities Exchange Act of 1934 and
the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations).
Section 2. Certain Definitions. For the purposes of
this Article Eleven:
A. A "person" shall mean any individual, firm,
corporation or other entity.
B. "Interested Securityholder" shall mean any person
(other than the corporation or any Subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly,
of 5% or more of the class of securities to be acquired;
or
(ii) is an Affiliate of the Corporation and at any
time within the two-year period immediately prior to the
date in question was the beneficial owner, directly or
indirectly, of 5% or more of the class of securities to
be acquired; or
(iii) is an assignee of or has otherwise succeeded
to any shares of the class of securities to be acquired
which were at any time within the two-year period
immediately prior to the date in question beneficially
owned by an Interested Security-holder, if such
assignment or succession shall have occurred in the
course of a transaction or transactions not involving a
public offering within the meaning of the Securities Act
of 1933.
C. A person shall be a "beneficial owner" of any
security of any class of the Corporation:
(i) which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially owns,
directly or indirectly; or
(ii) which such person or any of its 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 or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise, or (b) any right to vote pursuant to any
agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or
indirectly, by any other person with which such person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any security
of any class of the Corporation.
D. For the purposes of determining whether a person is
an "Interested Securityholder" pursuant to paragraph B of this
Section 2, the relevant class of securities outstanding shall be
deemed to comprise all such securities deemed owned through
application of paragraph C of this Section 2, but shall not include
other securities of such class which may be issuable pursuant to
any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
E. "Affiliate" or "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 in
effect on January 1, 1985.
F. "Equity Security" shall have the meaning ascribed to
such term in Section 3(a)(11) of the Securities Exchange Act of
1934, as in effect on January 1, 1985.
ARTICLE TWELVE
Notwithstanding any other provision of this Certificate
of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that a lesser percentage may be specified
by law, this Certificate of Incorporation or the By-Laws of the
Corporation), the affirmative vote of the holders of 80% or more of
the voting power of the shares of the then outstanding Voting Stock
(as defined in Article Ten of this Certificate of Incorporation),
voting together as a single class, shall be required to amend or
repeal, or adopt any provisions inconsistent with, Article Ten and
Article Eleven of this Certificate of Incorporation; provided,
however, that if not less than three-fourths (3/4) of the entire
Board of Directors shall adopt a resolution setting forth a
proposed amendment hereto and directing that it be submitted to a
vote at a meeting of shareholders, then such amendment shall be
approved upon receiving the affirmative vote of a majority of all
of the votes entitled to be cast by the outstanding capital stock
of the Corporation.
ARTICLE THIRTEEN
No director of the Corporation shall be liable to the
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
shareholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or which he knows to be a violation
of law, (iii) under Section 1053 of the Oklahoma General
Corporation Act, or (iv) for any transaction from which the
director derived an improper personal benefit.
THIRD: that such restatement was duly adopted in
accordance with the provisions of Section 1080 of the Oklahoma
General Corporation act and merely restates and integrates, but
does not further amend, the corporation's certificate of
incorporation as heretofore amended and supplemented, and there is
no discrepancy between those provisions and the provisions of this
restated certificate of incorporation.
IN WITNESS WHEREOF, the corporation has caused this
Restated Certificate of Incorporation to be signed by its President
and Secretary this 1st day of May, 1991.
E. DEAN WERRIES
E. Dean Werries, President
ATTEST:
JAMES W. CLARK
James W. Clark, Secretary
BYLAWS
OF
FLEMING COMPANIES, INC.
ARTICLE I
Offices
Section 1.1. Principal Office. The principal office of Fleming
Companies, Inc. (the "Corporation") shall be located at 6301
Waterford Boulevard, Oklahoma City, Oklahoma.
Section 1.2. Other Offices. The Corporation may also have offices
at such other places both within or without the State of Oklahoma
as the Board of Directors may from time to time determine.
ARTICLE II
Meetings of Shareholders
Section 2.1. Annual Meeting. The annual meeting of the
shareholders shall be held on a date designated by the Board of
Directors, which shall be within six months next following the end
of the fiscal year of the Corporation, for the purpose of electing
directors and for the transaction of such other business as may
come before the meeting.
Section 2.2. Special Meetings. Except as otherwise prescribed by
statute, special meetings of the shareholders for any purpose, may
be called by the Chairman and shall be called by the Secretary at
the request in writing of a majority of the Board of Directors.
Business transactions at any special meeting shall be limited to
the general objects stated in the call.
Section 2.3. Place of Meeting. Each annual meeting of the
shareholders for the election of directors shall be held at the
principal office of the Corporation in Oklahoma City, Oklahoma
unless the Board of Directors shall by resolution, adopted at least
60 days prior to the date of such meeting, designate any other
place, within or without the State of Oklahoma, at the place of
such meeting. Meetings of shareholders for any other purpose may
be held at such place, within or without the State of Oklahoma, and
at such time as shall be determined by the Board of Directors or
the Chairman, such time to be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2.4. Notice of Meeting. Written or printed notice stating
the place and time of each annual or special meeting of the
shareholders entitled to vote and, in the case of a special
meeting, the purpose or purposes for which the meeting is called,
shall be given not less than 10 days nor more than 60 days before
the date of the meeting. (See also Article IV).
Section 2.5. Shareholder List. A share ledger in which the names
of the shareholders are arranged alphabetically by classes of
shares, if any, shall be maintained and open for inspection at the
office of the Corporation in Oklahoma City if the meeting is to be
held in Oklahoma City, or at the place of the meeting if the
meeting is to be held outside of Oklahoma City, during ordinary
business hours, for a period of at least 10 days prior to the
meeting. The list shall also be available at the time and place of
the meeting, during the whole time of the meeting, and may be
inspected by any shareholder who is present. Such access to the
shareholder list shall be restricted to those shareholders whose
purpose in viewing the list is germane to the meeting.
Section 2.6. Quorum. The holders of voting stock of the
Corporation having a majority of the voting power thereat, present
in person or represented by proxy, shall be requisite for, and
shall constitute, a quorum at all meetings of the shareholders of
the Corporation for the transaction of business, except as
otherwise provided by statute or the Corporation's Certificate of
Incorporation or these Bylaws.
Section 2.7. Proxies. At every meeting of the shareholders, each
shareholder having the right to vote thereat shall be entitled to
vote in person or by proxy. Such proxy shall be appointed by an
instrument in writing subscribed by such shareholder and bearing a
date not more than three years prior to such meeting, unless such
proxy provides for a longer period; and it shall be filed with the
Secretary of the Corporation before, or at the time of, the
meeting.
Section 2.8. Voting. At every meeting of shareholders, except as
otherwise provided by law, each shareholder shall be entitled to
one vote for each share of stock of the Corporation entitled to
vote thereat and registered in the name of such shareholder on the
books of the Corporation on the pertinent record date. When a
quorum is present at any meeting of the shareholders, the vote of
the holders of a majority of the stock having voting power present
in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which, due to
a provision of the statutes or the Corporation's Certificate of
Incorporation or these Bylaws, a different vote is required, in
which case such provision shall govern and control the decision at
such question.
Section 2.9. Record Date. (a) In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment
or any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action other than shareholder action by written
consent, the Board of Directors may fix a record date, which shall
not precede the date such record date is fixed and shall not be
more than 60 nor less than 10 days before the date of such meeting,
nor more than 60 days prior to any such other action. If no record
date is fixed, the record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall
be at the close of business on the day next preceding the day on
which notice is given. The record date for any other purpose other
than shareholder action by written consent shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto. A determination of shareholders of
record entitled to notice of or to vote at a meeting of
shareholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
(b) In order that the Corporation may determine the
shareholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the
date upon which the resolution fixing the record date is adopted by
the Board of Directors. Any shareholder of record seeking to have
the shareholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the
Board of Directors to fix a record date. The Board of Directors
shall promptly, but in all events within 10 days after the date on
which such a request is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board of
Directors within 10 days of the date on which such a request is
received, the record date for determining shareholders entitled to
consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is required by applicable
law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered
to the Corporation by delivery to its registered office in the
State of Oklahoma, its principal place of business, or any officer
or agent of the corporation having custody of the book in which
proceedings of meetings of shareholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by applicable law, the
record date for determining shareholders entitled to consent to
corporate action in writing without a meeting shall be at the close
of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
Section 2.10. Nominations of Directors. Only persons who are
nominated in accordance with the procedures set forth in the Bylaws
shall be eligible to serve as directors. Nominations of persons
for election to the Board of Directors of the Corporation may be
made at a meeting of shareholders (a) by or at the direction of the
Board of Directors or (b) by any shareholder of the Corporation who
is a shareholder of record at the time of giving of notice provided
for in this Section 2.10, who shall be entitled to vote for the
election of directors at the meeting and who complies with the
notice procedures set forth in this Section 2.10. Such
nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary of the Corporation. To be timely, a
shareholder's notice shall be delivered to or mailed and received
at the principal executive offices of the Corporation not less than
60 days nor more than 90 days prior to the meeting; provided,
however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting
or such public disclosure was made. Such shareholder's notice
shall set forth (a) as to each person whom the shareholder proposes
to nominate for election or reelection as a director all
information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or
is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including
such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (b) as
to the shareholder giving the notice (i) the name and address, as
they appear on the Corporation's books, of such shareholder and
(ii) the class and number of shares of the Corporation which are
beneficially owned by such shareholder. At the request of the
Board of Directors, any person nominated by the Board of Directors
for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a
shareholder's notice of nomination which pertains to the nominee.
No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set
forth in this Section 2.10. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures
prescribed by the Bylaws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be
disregarded. Notwithstanding the foregoing provisions of this
Section 2.10, a shareholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the
matters set forth in this Section.
Section 2.11. Business. At any meeting of the shareholders, only
such business shall be conducted as shall have been brought before
the meeting (a) by or at the direction of the Board of Directors or
(b) by any shareholder of the Corporation who is a shareholder of
record at the time of giving of the notice provided for in this
Section 2.11, who shall be entitled to vote at such meeting and who
complies with the notice procedures set forth in this section 2.11.
For business to be properly brought before a shareholder meeting by
a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation not
less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice
or prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must
be received no later than the close of business on the 10th day
following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made. A shareholder's
notice to the Secretary shall set forth as to each matter the
shareholder proposes to bring before the meeting (a) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
meeting, (b) the name and address, as they appear on the
Corporation's books, of the shareholder proposing such business,
(c) the class and number of shares of the Corporation which are
beneficially owned by the shareholder and (d) any material interest
of the shareholder in such business. Notwithstanding anything in
the Bylaws to the contrary, no business shall be conducted at a
shareholder meeting except in accordance with the procedures set
forth in this Section 2.11. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting and in
accordance with the provisions of the Bylaws, and if he should so
determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 2.11, a
shareholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder with respect to the matters set forth in
this Section.
ARTICLE III
Directors
Section 3.1. Number and Election. The property and business of
the Corporation shall be managed by its Board of Directors. The
number of directors which shall constitute the whole Board shall be
not more than 20 and not less than three. The Board of Directors
shall from time to time by a vote of a majority of the directors
then in office fix within the maximum and minimum the number of
directors to constitute the Board. Except as provided in Section
3.2 of these Bylaws, the directors shall be elected at the annual
meeting of shareholders, or at any adjournment thereof, and each
director shall be elected and shall hold office in the manner
described in Section 3.12 hereof. Directors need not be
shareholders of the Corporation.
Section 3.2. Resignations and Vacancies. Any director may resign
at any time by giving written notice to the Chairman or Secretary
of the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective. If,
at any time other than the annual meeting of shareholders, any
vacancy occurs in the Board of Directors caused by resignation,
death, retirement, disqualification or removal from office of any
director or otherwise, or any new directorship is created by an
increase in the number of directors pursuant to Section 3.1 of the
Bylaws, a majority of the directors then in office, though less
than a quorum, may choose a successor, or fill the newly created
directorship, and the director so chosen shall hold office until
the expiration of the term of office of the class of directors to
which such director is appointed and until a successor shall be
duly elected and qualified, unless sooner displaced.
Section 3.3. Place of Meetings. Meetings of the Board of
Directors may be held at such place or places, within or without
the State of Oklahoma, as may be designated by the person or
persons calling such meetings.
Section 3.4. Annual Meeting. A meeting of the Board of Directors,
to be known as the annual meeting, shall be held following and on
the same day as the meeting of shareholders at which such Board of
Directors is elected. This meeting shall be held for the purpose
of electing the officers of the Corporation and for transacting any
other business that may properly come before the meeting. No
notice of this annual meeting other than these Bylaws shall be
necessary in order to legally constitute the meeting, provided a
quorum shall be present.
Section 3.5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times as the Chairman or the Board
of Directors may from time to time determine.
Section 3.6. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman and shall be called by the
Secretary at the request of any two directors, to be held at such
time and place, either within or without the State of Oklahoma, as
shall be designated by the call and specified in the notice of such
meeting; and notice thereof shall be given as provided in Section
3.7 of these Bylaws.
Section 3.7. Notice. Except as otherwise prescribed by statute,
written notice of the time and place of each regular or special
meeting of the Board of Directors shall be given at least two days
prior to the time of holding the meeting. Any director may waive
notice of any meeting. The attendance of a director at any meeting
shall constitute a waiver of notice of such meeting, except where
a director expressly objects to the transaction of any business
because the meeting is not lawfully called or convened and such
objection is made prior to the transaction of such business.
Neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in any
notice, or waiver of notice, of such special meeting except that
notice shall be given of any proposed amendment by these Bylaws or
with respect to any other matter where notice is required by
statute. (See also Article IV).
Section 3.8. Quorum. At each meeting of the Board of Directors,
the presence of not less than a majority of the whole board shall
be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically
provided by statute or the Corporation's Certificate of
Incorporation or these Bylaws. If a quorum shall not be present at
any meeting of directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3.9. Committees of Directors. The Board of Directors may,
by resolution passed by a majority of the whole board, designate
one or more committees, each committee to consist of two or more
directors of the Corporation, which, to the extent provided in the
resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business or affairs of the
Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. The
Board of Directors may designate one or more directors as alternate
members of any such committee, who may replace any absent or
disqualified member thereof. Each committee shall keep regular
minutes of its meetings and report the same to the Board of
Directors when required by the Board.
Section 3.10. Fees and Compensation of Directors. Directors may
receive stated salary for their services as such; or, by resolution
of the Board of Directors, a fixed fee, with or without expenses of
attendance, may be allowed for attendance at each regular or
special meeting of the Board. Members of the board shall be
allowed their reasonable traveling expenses when actually engaged
in the business of the Corporation, to be audited and allowed as in
other cases of demands against the Corporation. Members of
standing or special committees may be allowed like fees and
expenses for attending committee meetings. Nothing herein
contained shall be construed to preclude any director from serving
the Corporation in any other capacity and receiving compensation
therefor.
Section 3.11. Action Without a Meeting. Any action which might be
taken at a meeting of the Board of Directors may be taken without
a meeting if a record or memorandum thereof be made in writing and
signed by all the members of the board, and such writing is filed
with the minutes of the proceedings of the board.
Section 3.12. Classes of Directors, and Terms of Office. The
Board of Directors shall be divided into three classes as nearly as
equal in number as possible with the term of office of one class
expiring each year. Directors shall be chosen by a plurality of
votes cast in an election for directors. The class of directors
elected at the annual meeting of shareholders shall be elected for
three-year terms. When the number of directors is changed, any
newly created directorship or any decrease in directorships shall
be so apportioned among the classes as to make all classes as
nearly equal in number as possible. When the number of directors
is increased by the Board of Directors, there shall be no
classification of the additional directors until the next annual
meeting of shareholders. Subject to the foregoing, at each annual
meeting of shareholders, the successors to the class of directors
whose terms shall then expire shall be elected to hold office for
a term expiring at the third succeeding annual meeting.
ARTICLE IV
Notices
Section 4.1. Manner of Notice. Whenever under the provisions of
the statutes or the Corporation's Certificate of Incorporation or
these Bylaws notice is required to be given to any director, member
of any committee designated by the Board of Directors pursuant to
authority conferred by Section 3.9 of these Bylaws, or shareholder,
it shall be given in writing by depositing it, in a sealed
envelope, in the mails, postage prepaid, addressed (or by
delivering it to a telegraph company, charges prepaid, for
transmission) to such director, member or shareholder either at the
address of such director, member or shareholder as it appears on
the books of the Corporation or, in the case of such a director or
member, at his business address; and such notice shall be deemed to
be given at the time when it is thus deposited in the mails (or
delivered to the telegraph company).
Section 4.2. Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or the Corporation's
Certificate of Incorporation or these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed
equivalent thereto. Any shareholder or director who attends any
meeting, annual, regular or special, shall be conclusively presumed
to have waived notice thereof, except where such shareholder or
director expressly objects to the transaction of any business
because the meeting is not lawfully called or convened and such
objection is made prior to the transaction of such business.
ARTICLE V
Officers
Section 5.1. Officers and Official Positions. The Board of
Directors may elect a Chairman of the Board. The office of
Chairman of the Board may be named Chairman if so designated by the
Board of Directors. The Board may elect a President, one or more
Vice Presidents, a Secretary, a Treasurer, a Controller, such
Assistant Secretaries, Assistant Treasurers, and Assistant
Controllers and such other officers as the Board of Directors shall
determine. Any two or more offices may be held by the same person.
None of the officers need be a director or a shareholder of the
Corporation or a resident of the State of Oklahoma.
Section 5.2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at
the annual meeting of the Board. If the election of officers shall
not be held at such meeting of the board, such election shall be
held at a regular or special meeting of the Board of Directors as
soon thereafter as may be convenient. Each officer shall hold
office until a successor is chosen and qualified or until death, or
until such officer shall resign, or shall have been removed in the
manner hereinafter provided.
Section 5.3. Removal and Resignation. Any officer may be removed,
either with or without cause, by a majority of the directors at the
time in office at any regular or special meeting of the Board; but
such removal shall be without prejudice to the contract rights, if
any, of such person so removed. Any officer may resign at any time
by giving written notice to the Chairman or Secretary of the
Corporation. Any such resignation shall take effect at the date of
the receipt of such notice or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5.4. Vacancies. A vacancy in any office because of death,
resignation, removal, or any other cause may be filled for the
unexpired portion of the term by the Board of Directors at any
regular or special meeting of the Board.
Section 5.5. Chief Executive Officer. If the Board of Directors
has elected a Chairman, it may designate the Chairman as the Chief
Executive Officer of the Corporation. If no Chairman has been
elected, or in the Chairman's absence or inability to act or if no
such designation has been made by the Board of Directors, the
President or such other designee as the Board of Directors shall
determine shall act as the Chief Executive Officer of the
Corporation. The Chief Executive Officer shall (i) have the
overall supervision of the business of the Corporation and shall
direct the affairs and policies of the Corporation, subject to any
directions which may be given by the Board of Directors, (ii) shall
have authority to delegate special powers and duties to specified
officers, so long as such designations shall not be inconsistent
with the statutes or the Corporation's Certificate of Incorporation
or these Bylaws or action of the Board of Directors and (iii) shall
in general have all other powers and shall perform all other duties
incident to the chief executive officer of a corporation and such
other powers and duties as may be prescribed by the Board of
Directors from time to time.
The Chairman, if one has been elected, shall preside at all
meetings of the shareholders, and of the Board of Directors. The
Chairman may sign with the Secretary or an Assistant Secretary,
certificates for shares of stock of the Corporation, the issuance
of which shall have been duly authorized by the Board of Directors.
Section 5.6. President. (a) If the Board of Directors has elected
a Chairman and designated such officer as the Chief Executive
Officer of the Corporation, the President shall be subject to the
control of the Board of Directors and the Chairman, and shall have
such powers and perform such duties as from time to time may be
assigned by the Board of Directors or the Chairman.
(b) If the Board of Directors has not elected a
Chairman, or, if one has been elected and has not been designated
the Chief Executive Officer of the Corporation, then the President
or such other person as may be designated by the Board of Directors
shall be the Chief Executive Officer of the Corporation with the
powers and duties provided in Section 5.5 of these Bylaws.
(c) In any event, the President shall have power to
execute, and shall execute, deeds, mortgages, bonds, contracts or
other instruments of the corporation except where required or
permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent
of the Corporation. The President may sign with the Secretary or
an Assistant Secretary, certificates for shares of stock of the
Corporation, the issuance of which shall have been duly authorized
by the Board of Directors, and shall vote, or give a proxy to any
other person to vote, all shares of stock of any other corporation
standing in the name of the Corporation.
Section 5.7. Vice Presidents. In the absence of the President, or
in the event of his inability or refusal to act, the Vice President
designated by the Board of Directors or the Chief Executive
Officer, shall perform all duties of the President and, when so
acting, shall have all the powers of, and be subject to all the
restrictions upon, the President. The Vice Presidents shall have
such other powers and perform such other duties, not inconsistent
with the statutes or the Corporation's Certificate of Incorporation
or these Bylaws or action of the Board of Directors, as from time
to time may be prescribed for them, respectively, by the Chief
Executive Officer. The Board of Directors may, from time to time,
designate certain of the Vice Presidents as Executive Vice
Presidents, Senior Vice Presidents, Vice Presidents, Assistant Vice
Presidents or such other designation as the Board of Directors
deems appropriate. The duties and areas of responsibility of the
various Vice Presidents shall be determined by the Chairman and the
Board of Directors, to the extent not inconsistent with applicable
statutes or these Bylaws.
Section 5.8. Secretary. The Secretary shall: (a) keep the minutes
of the meetings of the shareholders, the Board of Directors and
committees of directors, in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with
the provisions of these Bylaws or as required by law; (c) have
charge of the corporate records and of the seal of the Corporation;
(d) affix the seal of the Corporation or a facsimile thereof, or
cause it to be affixed, to all certificates for shares prior to the
issuance thereof and to all documents the execution of which on
behalf of the Corporation under its seal is duly authorized by the
Board of Directors or otherwise in accordance with the provisions
of these Bylaws; (e) keep a register of the post office address of
each shareholder, director and committee member, which shall from
time to time be furnished to the Secretary by such shareholder,
director or member; (f) sign with the Chairman or President
certificates for shares of stock of the Corporation, the issuance
of which shall have been duly authorized by resolution of the Board
of Directors; (g) have general charge of the stock transfer books
of the Corporation; and (h) in general, perform all duties incident
to the office of Secretary and such other duties as from time to
time may be assigned by the Chairman, the President or by the Board
of Directors. The Secretary may delegate such details of the
performance of duties of the office of Secretary as may be
appropriate in the exercise of reasonable care to one or more
persons, but shall not thereby be relieved of responsibility for
the performance of such duties.
Section 5.9. Chief Financial Officer. The Chief Financial Officer
shall be a Vice President, elected and designated as Chief
Financial Officer, who shall: (a) be responsible to the Board of
Directors for the receipt, custody and disbursement of all funds
and securities of the Corporation; (b) receive and give receipts
for moneys due and payable to the Corporation from any source
whatsoever and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories as
shall from time to time be selected in accordance with the
provisions of Section 6.4 of these Bylaws; (c) disburse the funds
of the Corporation as ordered by the Board of Directors or the
Chief Executive Officer or as required in the ordinary conduct of
the business of the Corporation; (d) render to the Chief Executive
Officer or the Board of Directors, upon request, an account of all
transactions as Chief Financial Officer and on the financial
condition of the Corporation; and (e) in general, perform all the
duties incident to the office of Chief Financial Officer and such
other duties as from time to time may be assigned by the Chairman,
the President, the Board of Directors or these Bylaws. In the
event there be no Chief Financial Officer, the Board of Directors
may designate any officer to perform the duties of the Chief
Financial Officer.
Section 5.10. Treasurer. The Treasurer shall have such duties and
responsibilities as may, from time to time, be designated by the
Board of Directors, the Chairman and the Chief Financial Officer.
Section 5.11. Controller. The Controller shall be the chief
accounting officer of the Corporation, and shall be responsible to
the Board of Directors and the Chief Financial Officer for internal
accounting and control of the books and records of the Corporation.
Such responsibility includes preparation of all financial reports,
tax returns and such other duties as may be assigned by the Board
of Directors or the Chief Financial officer.
ARTICLE VI
Contracts, Borrowings, Checks and Deposits
Section 6.1. Contracts and Other Instruments. The Board of
Directors may authorize any officer or officers, agent or agents,
to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 6.2. Borrowings. No borrowings shall be contracted on
behalf of the corporation, or any division thereof, and no evidence
of indebtedness shall be issued in the name of the Corporation,
unless authorized by a resolution of the Board of Directors. Such
authority may be general or confined to specific instances.
Section 6.3. Checks, Drafts, etc. All checks, demands, drafts or
other orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the Corporation, shall be signed
by such officer or officers, agent or agents of the Corporation,
and in such manner, as shall from time to time be determined by the
Board of Directors.
Section 6.4. Deposits. All funds of the Corporation, not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Chief Financial Officer or Treasurer may
select.
Section 6.5. Investments. The Board of Directors may authorize
any officer or officers, agent or agents of the Corporation, to
invest the funds of the Corporation in obligations of the Federal
government or any agency thereof or of any state government or any
agency thereof, commercial paper, real estate, equity securities or
debt obligations of any other corporation and such other
investments as the Board of Directors may approve, and such
authority may be general or confined to specific instances.
ARTICLE VII
Certificates of Stock and Their Transfer
Section 7.1. Certificates of Stock. The certificates of stock of
the Corporation shall be in such form as may be determined by the
Board of Directors, shall be numbered and shall be entered in the
books of the Corporation as they are issued. They shall exhibit
the name of the Corporation, the state of incorporation, the name
of the registered holder, the number of shares and the par value
thereof and shall be signed by the Chairman or President and by the
Secretary or an Assistant Secretary. The signature of any such
officer may be facsimile. In case any such officer who shall have
signed or whose facsimile signature has thus been used on any such
certificate shall cease to be such officer, whether because of
death, resignation or otherwise, before such certificate has been
delivered by the Corporation, such certificate may nevertheless be
delivered by the Corporation, as though the person whose facsimile
signature has been used thereon had not ceased to be such officer.
All certificates properly surrendered to the Corporation for
transfer shall be cancelled and no new certificate shall be issued
to evidence transferred shares until the former certificate for at
least a like number of shares shall have been surrendered and
cancelled and the Corporation reimbursed for any applicable taxes
on the transfer, except that in the case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such
terms, and with such indemnity (if any) to the Corporation, as the
Board of Directors may prescribe specifically or in general terms
or by delegation to a transfer agent for the Corporation. (See
Section 7.2.)
Section 7.2. Lost or Destroyed Certificates. The Board of
Directors in individual cases, or by delegation to a transfer
agent, may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate
of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in
its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificates,
or his legal representative, to advertise the same in such manner
as it shall require and/or give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to
have been lost or destroyed.
Section 7.3. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, and
upon payment of applicable taxes with respect to such transfer, it
shall be the duty of the Corporation, subject to such rules and
regulations as the Board of Directors may from time to time deem
advisable concerning the transfer and registration of certificates
for shares of stock of the Corporation, to issue a new certificate
to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. Transfers of shares shall
be made only on the books of the Corporation on behalf of the
registered holder thereof or by his attorney or successor duly
authorized as evidenced by documents filed with the Secretary or
transfer agent of the Corporation.
Section 7.4. Stockholders of Record. The Corporation shall be
entitled to treat the holder of record of any share or shares of
stock as the holder in fact thereof and accordingly, shall not be
bound to recognize any equitable or other claim to or interest in
such share or shares notwithstanding any express or other notice
thereof, except as otherwise provided by the laws of Oklahoma.
ARTICLE VIII
General Provisions
Section 8.1. Fiscal Year. The fiscal year of the Corporation
shall be the 52 or 53 week period ending on the last Saturday in
December in each year and beginning on the following Sunday.
Section 8.2. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, and the words "Corporate Seal"
and "Oklahoma" or an abbreviation thereof; and it shall otherwise
be in the form approved by the Board of Directors. Such seal may
be used by causing it, or a facsimile thereof, to be impressed or
affixed or otherwise reproduced.
Section 8.3. Indemnification. (a) The Corporation shall
indemnify any director or officer of the Corporation who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Corporation) by reason of the fact that such
person is or was a director or officer of the Corporation or is or
was serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture or other
enterprise against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding if the
director or officer acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the
Corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe that such conduct was unlawful.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or
its equivalent shall not of itself create a presumption that the
person did not act in good faith and in a manner reasonably
believed to be in or not opposed to the best interest of the
Corporation and with respect to any criminal action or proceeding
have reasonable cause to believe that such conduct was unlawful.
(b) The Corporation shall indemnify any director or
officer of the Corporation who was or is a party or is threatened
to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment
in its favor by reason of the fact that such person is or was a
director or officer of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorney's fees) actually and
reasonably incurred in connection with the defense or settlement of
such action or suit if the director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the
best interest of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for negligence or
misconduct in performance of duty to the Corporation unless and
only to the extent that the court in which action or suit was
brought shall determine, upon application, that despite the
adjudication of liability, but in the view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
(c) Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the
Corporation as authorized herein.
(d) The Corporation may purchase (upon resolution duly
adopted by the Board of Directors) and maintain insurance on behalf
of any person who is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against such person and incurred in any such capacity, or arising
out of the status as such, whether or not the Corporation would
have the power to indemnify the director or officer against such
liability.
(e) To the extent that a director or officer of the
Corporation has been successful on the merits or otherwise in
defense of any action, suit, or proceeding referred to herein or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually
and reasonably incurred in connection therewith.
(f) Every director or officer shall be entitled, without
demand upon the Corporation or any action by the Corporation, to
enforce such person's right to such indemnity in an action at law
against the Corporation. The right of indemnification hereinabove
provided shall not be deemed exclusive of any rights to which any
such person may now or hereafter be otherwise entitled and
specifically, without limiting the generality of the foregoing,
shall not be deemed exclusive of any rights pursuant to statute or
otherwise, of any such person in any such action, suit or
proceeding to have assessed or allowed against the Corporation or
otherwise, costs and expenses incurred therein or in connection
therewith or any part thereof.
(g) Any indemnification hereinabove provided, unless
ordered by a court, shall be made by the Corporation only as
authorized in a specific case because the Corporation has
determined that the indemnitee has met the requisite standards of
conduct as set forth in sub-sections (a) and (b) above. Such
determination is to be made by the Board of Directors by majority
vote of a quorum consisting of directors who are not parties to
such action, suit or proceeding; or if such a quorum is not
obtainable, or even if obtainable should a quorum of disinterested
directors so direct, by independent legal counsel in a written
opinion; or by the shareholders.
ARTICLE IX
Amendments
Section 9.1. In General. Any provision of these Bylaws may be
altered, amended or repealed from time to time by the affirmative
vote of a majority of the stock having voting power present in
person or by proxy at any annual or special meeting of shareholders
at which a quorum is present, if notice of the proposed alteration,
amendment or repeal is contained in the notice of such meeting, or
by the affirmative vote of a majority of the directors then
qualified and acting at any meeting of the Board at which a quorum
is present, if notice of the proposed alteration, amendment or
repeal has been given to each director.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by referenced in this Registration
Statement of Fleming Companies, Inc. on Form S-8 of our report
dated February 22, 1996 (April 12, 1996 as to effects of a jury
verdict, other resulting legal proceedings and related matters
discussed in Subsequent Events note), appearing in the Annual
Reports on Form 10-K and on Form 10-K/A of Fleming Companies, Inc.
and subsidiaries for the year ended December 30, 1995.
DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Oklahoma City, Oklahoma
September 3, 1996
CONSENT OF McAFEE & TAFT A PROFESSIONAL CORPORATION
September 3, 1996
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 to the opinions expressed in and
the reference to our firm as legal counsel appearing in the Annual
Report on Form 10-K of Fleming Companies, Inc. and subsidiaries for
the year ended December 30, 1995, as amended.
MCAFEE & TAFT A PROFESSIONAL
CORPORATION
McAfee & Taft A Professional
Corporation
