<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 22, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C>
FORD MOTOR COMPANY FORD HOLDINGS, INC.
<CAPTION>
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN CHARTER)
<S> <C>
DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION) ORGANIZATION)
38-0549190 38-2890269
(I.R.S. EMPLOYER IDENTIFICATION NO.) (I.R.S. EMPLOYER IDENTIFICATION NO.)
THE AMERICAN ROAD, THE AMERICAN ROAD,
DEARBORN, MICHIGAN 48121 DEARBORN, MICHIGAN 48121
(313) 322-3000 (313) 322-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S INCLUDING AREA CODE, OF REGISTRANT'S
PRINCIPAL EXECUTIVE OFFICES) PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
J. M. RINTAMAKI, ESQ.
FORD MOTOR COMPANY
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121
(313) 322-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
------------------------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING
BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE(A) PRICE(A) FEES
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<S> <C> <C> <C> <C>
Common Stock, par value $1.00 per
share, of Ford Motor Company...... 166,786 shares $30.75 $5,128,669.50 $1,768.52
- ------------------------------------------------------------------------------------------------------------
Series A Cumulative Preferred Stock,
par value $1.00 per share, of
Ford Holdings, Inc................ 4.88075 shares $100,843.75 $492,193.13 $169.72
- ------------------------------------------------------------------------------------------------------------
Depositary Shares................... 19,523 shares(b) -- -- --
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</TABLE>
(a) Based upon the average of the high and the low sale prices of said Common
Stock and Depositary Shares as reported in The Wall Street Journal for New
York Stock Exchange Composite Transactions on August 17, 1994 solely for
the purpose of determining the amount of the registration fee pursuant to
Rule 457(c).
(b) Each Depositary Share will represent 1/4,000 of a share of Series A
Cumulative Preferred Stock and will be evidenced by a Depositary Receipt
issued pursuant to a Deposit Agreement.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
PURSUANT TO RULE 429 OF THE GENERAL RULES AND REGULATIONS UNDER THE
SECURITIES ACT OF 1933, THE PROSPECTUS WHICH IS A PART OF THIS REGISTRATION
STATEMENT IS A COMBINED PROSPECTUS RELATING ALSO TO REGISTRATION STATEMENT NO.
33-55474.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION, DATED AUGUST 22, 1994
PROSPECTUS
K(LOGO)
FORD MOTOR COMPANY
AND
FORD HOLDINGS, INC.
DIVIDEND REINVESTMENT
AND STOCK PURCHASE PLAN
------------------------
The Dividend Reinvestment and Stock Purchase Plan (the "Plan") of Ford
Motor Company ("Ford") and Ford Holdings, Inc. ("Ford Holdings") provides
holders of record of Series B Cumulative Preferred Stock, par value $1.00 per
share, of Ford ("Ford Series B Preferred Stock"), and holders of record of
Depositary Shares ("Ford Series B Depositary Shares"), each representing
ownership of 1/2,000 of a share of Ford Series B Preferred Stock (each a
"Stockholder"), with a simple and convenient way to purchase (i) shares of
Common Stock, par value $1.00 per share, of Ford ("Ford Common Stock") and/or
(ii) Depositary Shares ("Ford Holdings Series A Depositary Shares"), each
representing ownership of 1/4,000 of a share of Series A Cumulative Preferred
Stock, par value $1.00 per share, of Ford Holdings ("Ford Holdings Series A
Preferred Stock").
This Prospectus relates to an aggregate 200,000 shares of Ford Common Stock
and an aggregate 96,000 Ford Holdings Series A Depositary Shares representing an
aggregate 24 shares of Ford Holdings Series A Preferred Stock.
Under the Plan, a Stockholder may elect to purchase shares of Ford Common
Stock and/or Ford Holdings Series A Depositary Shares by (i) reinvesting the
cash dividends paid on all or a designated number (which, if a fraction, must be
in integral multiples of 1/2,000) of the Stockholder's shares of Ford Series B
Preferred Stock or cash dividends distributed with respect to all or a
designated whole number of the Stockholder's Ford Series B Depositary Shares, as
the case may be, and/or (ii) making cash payments from time to time for purchase
on any dividend payment date (as defined below), subject to certain limitations.
See "Description of the Plan -- 3. Participation".
At the direction of Ford or Ford Holdings, as the case may be, shares of
Ford Common Stock and Ford Holdings Series A Depositary Shares will be purchased
directly from Ford or Ford Holdings, respectively, or in open market
transactions. If purchases of Ford Common Stock or Ford Holdings Series A
Depositary Shares are made directly from Ford or Ford Holdings, the price per
share will be the average of the daily high and low sales prices of such shares
traded on the New York Stock Exchange, as reported in The Wall Street Journal
for New York Stock Exchange Composite Transactions, for the period of ten
trading days immediately prior to the dividend payment date. If purchases of
Ford Common Stock or Ford Holdings Series A Depositary Shares are made in open
market transactions, the price per share will be the average cost of all such
shares so purchased on the relevant dividend payment date, plus any related
brokerage fees or commissions. See "Description of the Plan -- 4. Purchases and
Purchase Price". It is expected that most shares of Ford Common Stock and Ford
Holdings Series A Depositary Shares purchased under the Plan will be purchased
directly from Ford and Ford Holdings, respectively.
Ford Common Stock and Ford Holdings Series A Depositary Shares are listed on
the New York Stock Exchange under the symbol F and FHI.PR, respectively. It is
suggested that this Prospectus be retained for further reference.
The proportionate liquidation preference of each Ford Holdings Series A
Depositary Share is $25. Dividends on Ford Holdings Series A Preferred Stock
will be cumulative from the date of original issue and will be payable
quarterly, when, as and if declared by the Board of Directors of Ford Holdings,
on the first business day of March, June, September and December of each year
(each a "dividend payment date"), in an amount equivalent to $2.00 per annum per
Ford Holdings Series A Depositary Share.
On August 17, 1994, the last reported sale prices of Ford Common Stock and
Ford Holdings Series A Depositary Shares as reported in The Wall Street Journal
for New York Stock Exchange Composite Transactions were $30 5/8 and $24 7/8,
respectively, per share.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is August , 1994.
<PAGE> 3
AVAILABLE INFORMATION
Each of Ford and Ford Holdings is subject to the informational requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other information
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
following Regional Offices of the Commission: Seven World Trade Center, 13th
Floor, New York, New York 10048 and 500 West Madison St., 14th Floor, Chicago,
Illinois 60661. Copies of such material can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. Such reports and other information also are available
for inspection at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005 and, with respect to Ford only, at the offices
of the Pacific Coast Stock Exchange.
Ford and Ford Holdings have filed with the Commission Registration
Statements on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement and the exhibits and schedules thereto, certain portions of which have
been omitted pursuant to the rules and regulations of the Commission. The
information so omitted may be obtained from the Commission's principal office in
Washington, D.C. upon payment of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Ford's Annual Report on Form 10-K for the year ended December 31, 1993
("Ford's 1993 10-K Report"), Ford's Quarterly Reports on Form 10-Q for the
three-month periods ended March 31, 1994 and June 30, 1994, respectively
("Ford's 10-Q Reports"), and Ford's Current Reports on Form 8-K dated February
9, 1994, February 10, 1994, April 14, 1994, April 21, 1994, April 29, 1994, June
27, 1994 and July 27, 1994 are incorporated in this Prospectus by reference.
Ford Holdings' Annual Report on Form 10-K for the year ended December 31, 1993
("Ford Holdings' 1993 10-K Report"), Ford Holdings' Quarterly Reports on Form
10-Q for the three-month periods ended March 31, 1994 and June 30, 1994,
respectively ("Ford Holdings' 10-Q Reports"), and Ford Holdings' Current Report
on Form 8-K dated August 3, 1994, also are incorporated in this Prospectus by
reference. All documents filed by Ford or Ford Holdings pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the securities offered hereby
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing such documents.
Each of Ford and Ford Holdings undertakes to provide without charge to each
person to whom this Prospectus is delivered, on the written or oral request of
any such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents). Written or
telephonic requests should be directed to Ford Motor Company, The American Road,
Dearborn, Michigan 48121, Attention: Stockholder Relations Department (telephone
number 313-845-8540), or Ford Holdings, Inc., The American Road, Dearborn,
Michigan 48121, Attention: Assistant Treasurer (Telephone 313-322-3000), as the
case may be.
-------------------------
THIS PROSPECTUS CONTAINS BRIEF SUMMARIES OF CERTAIN MORE DETAILED
INFORMATION CONTAINED IN DOCUMENTS INCORPORATED HEREIN BY REFERENCE. SUCH
SUMMARIES ARE QUALIFIED IN THEIR ENTIRETY BY THE DETAILED INFORMATION CONTAINED
IN THE INCORPORATED DOCUMENTS.
-------------------------
The following information, which is being disclosed pursuant to Florida
law, is accurate as of the date of this Prospectus: Autolatina-Comercio,
Negocios e Participacoes Ltda., a Brazilian company ("Autolatina"), is a joint
venture between Ford and Volkswagen AG in which Ford has a 49% ownership
interest. Autolatina occasionally sells vehicles to persons located in Cuba.
Each such sale is made pursuant to a specific license granted to Ford by the
U.S. Department of Treasury. The last such sale, which involved one medical
supply vehicle, was made to Cubanacan in April 1991. Current information
concerning Autolatina's or its Ford-related affiliates' business dealings with
the government of Cuba or with persons located in Cuba may be obtained from the
State of Florida Department of Banking and Finance at The Capitol Building,
Suite 1401, Tallahassee, Florida 32399-0350 (telephone number 904-488-0545).
2
<PAGE> 4
FORD MOTOR COMPANY
Ford is the second-largest producer of cars and trucks in the world, and
ranks among the largest providers of financial services in the United States.
Ford's two business segments are Automotive and Financial Services. The
activities of the Automotive segment consist of the manufacture, assembly and
sale of cars and trucks and related parts and accessories. The Financial
Services segment is comprised of the following subsidiaries: Ford Motor Credit
Company ("Ford Credit"), Ford Credit Europe plc, First Nationwide Financial
Corporation, The Hertz Corporation, Ford Holdings, Associates First Capital
Corporation ("The Associates"), The American Road Insurance Company ("American
Road") and USL Capital Corporation ("USL Capital"). The activities of these
subsidiaries include financing, insurance and savings and loan operations and
vehicle and equipment leasing.
The principal executive office of Ford is located at The American Road,
Dearborn, Michigan 48121, and its telephone number is (313) 322-3000.
FORD HOLDINGS, INC.
Ford Holdings was incorporated in Delaware in September 1989 for the
principal purpose of acquiring, owning and managing certain assets of Ford. Ford
Holdings' primary activities consist of consumer and commercial financing
operations, insurance underwriting and equipment leasing through its wholly
owned subsidiaries, The Associates, American Road, USL Capital, Ford Motor Land
Development Corporation ("Ford Land") and Ford Leasing Development Company
("Ford Leasing"). As a holding company, Ford Holdings has no employees of its
own and American Road, Ford Land and Ford Leasing have no employees of their
own; their operations are conducted by employees of Ford and Ford Credit,
pursuant to management service agreements. See Item 13, "Certain Relationships
and Related Transactions" of the Ford Holdings' 1993 10-K Report and Note 16 of
the Notes to Financial Statements included in the Ford Holdings' 1993 10-K
Report.
All the outstanding Common Stock of Ford Holdings, representing 75% of the
combined voting power of all classes of capital stock of Ford Holdings, is owned
by Ford and Ford Credit. The balance of the capital stock, consisting of shares
of preferred stock (including outstanding shares of Ford Holdings Series A
Preferred Stock), is held by nonaffiliated persons and accounts for the
remaining 25% of the total voting power.
Ford Holdings intends to pay dividends on Ford Holdings Series A Preferred
Stock primarily from cash dividends received from its subsidiaries. The ability
of the subsidiaries to pay dividends to Ford Holdings is dependent upon the
subsidiaries' profitability, regulatory requirements, and other factors, and is
subject to restrictive covenants in their debt instruments. Such restrictions
include a limitation on the payment of cash dividends by Associates Corporation
of North America, the principal subsidiary of The Associates, on its common
stock in any year to not more than 50% of consolidated net earnings for such
year, subject to certain exceptions, plus increases in contributed capital and
extraordinary gains. In addition, insurance regulatory requirements of the State
of Michigan restrict payment of dividends by American Road. See Note 14 of the
Notes to Financial Statements included in the Ford Holdings' 1993 10-K Report.
The principal executive office of Ford Holdings is located at The American
Road, Dearborn, Michigan 48121, and its telephone number is (313) 322-3000.
3
<PAGE> 5
USE OF PROCEEDS
Neither Ford nor Ford Holdings knows either the number of shares of Ford
Common Stock or Ford Holdings Series A Depositary Shares, as the case may be,
that ultimately will be purchased directly from them under the Plan or the
prices at which such shares will be sold. Each of Ford and Ford Holdings intends
to add any proceeds it receives from sales of Ford Common Stock or Ford Holdings
Series A Depositary Shares, as the case may be, to its general funds to be
available for general corporate purposes.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The ratio of "earnings" to "combined fixed charges and preferred stock
dividends" for each of Ford and Ford Holdings and its respective subsidiaries
was as follows for each of the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30 YEARS ENDED DECEMBER 31
--------------- ---------------------------------------------
1994 1993 1993 1992 1991 1990 1989
----- ----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ford............................... 2.1 1.6 1.4 * ** 1.2 1.7
Ford Holdings...................... 1.4 1.4 1.4 1.3 1.3 1.2 1.6
</TABLE>
- -------------------------
* Earnings were inadequate to cover combined fixed charges and preferred stock
dividends by $554 million.
** Earnings were inadequate to cover combined fixed charges and preferred stock
dividends by $2,690 million.
For purposes of Ford's ratio, "earnings" include the profit/(loss) before
income taxes and cumulative effects of changes in accounting principles of Ford
and its majority-owned subsidiaries, whether or not consolidated, its
proportionate share of any fifty-percent-owned companies, and any income
received from less-than-fifty-percent-owned companies, plus adjusted fixed
charges. "Combined fixed charges and preferred stock dividends" consist of
interest on borrowed funds, preferred stock dividend requirements of
majority-owned subsidiaries, amortization of debt discount, premium, and
issuance expense, one-third of all rental expense (the portion deemed
representative of the interest factor) and dividends paid on preferred stock.
Preferred stock dividend requirements have been increased to an amount
representing the pre-tax earnings which would be required to cover such
dividends based on Ford's effective income tax rates for the respective periods.
For purposes of Ford Holdings' ratio, "earnings" include earnings before
income taxes and cumulative effects of changes in accounting principles, plus
adjusted fixed charges. "Combined fixed charges and preferred stock dividends"
consist of interest on borrowed funds, amortization of debt discount, premium,
and issuance expense, one-third of all rental expense (the portion deemed
representative of the interest factor) and dividends paid on preferred stock.
Preferred stock dividend requirements have been increased to an amount
representing the pre-tax earnings which would be required to cover such
dividends based on Ford Holdings' effective income tax rates for the respective
periods.
4
<PAGE> 6
DESCRIPTION OF THE PLAN
1. ADMINISTRATION
The Plan is administered for the participants by Ford, Ford Holdings and
Chemical Bank, as agent for the participants (the "Agent"). The Agent's duties
include holding shares of Ford Common Stock, Ford Holdings Series A Preferred
Stock and Ford Holdings Series A Depositary Shares acquired under the Plan,
keeping records, sending statements of account activity to participants and
performing other duties related to the Plan. The Agent's address is:
Chemical Bank
Dividend Reinvestment Department
Ford Motor Company and Ford Holdings, Inc. Dividend Reinvestment
and
Stock Purchase Plan
J.A.F. Building
P. O. Box 3069
New York, New York 10116-3069
Telephone No. 1-800-279-1237
Chemical Bank also acts as transfer agent and registrar for Ford Common
Stock, Ford Series B Preferred Stock and Ford Holdings Series A Preferred Stock
and as depositary and registrar for Ford Holdings Series A Depositary Shares and
Ford Series B Depositary Shares. In addition, in connection with offers and
sales under the Plan of Ford Holdings Series A Depositary Shares purchased by
the Agent directly from Ford Holdings, Chemical Bank or an affiliate of Chemical
Bank will act as sales agent for Ford Holdings to the extent required by
applicable law in certain jurisdictions.
2. ELIGIBILITY
In general, any Stockholder is eligible to participate in the Plan. If a
person owns shares of Ford Series B Preferred Stock or Ford Series B Depositary
Shares which are not registered in his or her name, for example, shares
registered in the name of a broker or bank nominee, the person must have the
shares transferred to his or her name in order to participate in the Plan or
make appropriate arrangements for the broker or nominee to participate in the
Plan on his or her behalf. In such an event, the Agent, Ford and Ford Holdings
shall treat such broker or nominee as the participant and the person whose
shares are held in the name of a broker or nominee shall have no rights as a
participant under the Plan. A person who chooses to leave his or her shares
registered in the name of a broker or nominee must verify the extent to which
such broker or nominee will provide all of the services and features of the
Plan. Such person must rely upon his or her broker or nominee for administering
his or her dividends and must correspond exclusively with the broker or nominee
on all matters regarding the Plan, including optional cash payments, account
statements, share withdrawal and termination of participation in the Plan. The
Agent will have no record of the participation in the Plan by any person whose
shares are held in the name of a broker or nominee.
3. PARTICIPATION
Under the Plan, a Stockholder may elect to purchase shares of Ford Common
Stock and/or Ford Holdings Series A Depositary Shares by (i) reinvesting the
cash dividends paid on all or a designated number (which, if a fraction, must be
in integral multiples of 1/2,000) of the Stockholder's shares of Ford Series B
Preferred Stock or the cash dividends distributed with respect to all
5
<PAGE> 7
or a designated whole number of the Stockholder's Ford Series B Depositary
Shares, as the case may be, and/or (ii) making cash payments from time to time
for purchase on any dividend payment date for Ford Series B Preferred Stock,
subject to the limitations described herein.
A Stockholder may participate in the Plan at any time by completing and
signing an authorization form ("Authorization Form") and returning it to the
Agent at the address shown above. An Authorization Form may be obtained by
written request to the Agent.
For reinvested dividends, participation will begin with the next quarterly
dividend payment for Ford Series B Preferred Stock, as and when declared, after
receipt of the Authorization Form by the Agent, provided the Authorization Form
is received prior to the record date for that dividend. A participant may elect
to reinvest the cash dividends paid on all or a designated number of the
participant's shares of Ford Series B Preferred Stock or Ford Series B
Depositary Shares, as the case may be. If a participant wishes only to make
optional cash payments, the Authorization Form must be received not less than
ten days prior to a dividend payment date for Ford Series B Preferred Stock for
investment on that date. If the Agent receives an Authorization Form after such
deadlines, participation will begin on the next dividend payment date.
A participant desiring to make optional cash payments may do so by sending
the Agent a check or money order made payable to the Agent, for the amount he or
she wishes to invest, which may not be less than $25 or more than $12,000 with
respect to each quarterly optional cash purchase. No interest will be paid on
cash payments. An acknowledgment will be sent to a participant confirming the
receipt of each optional cash payment. Any cash payment received by the Agent
less than three business days prior to a dividend payment date will be returned
to the participant.
Participants who wish to change their elections under the Plan must
complete, sign and return to the Agent a new Authorization Form. The change will
take effect as of the next dividend record date after the new Authorization Form
is received by the Agent.
4. PURCHASES AND PURCHASE PRICE
At the direction of Ford, the Agent may purchase shares of Ford Common
Stock either from Ford or in open market transactions and, at the direction of
Ford Holdings, the Agent may purchase Ford Holdings Series A Depositary Shares
either from Ford Holdings or in open market transactions. If the Agent purchases
such shares from Ford or Ford Holdings, the price per share of Ford Common Stock
or Ford Holdings Series A Depositary Shares to each participant will be the
average of the daily high and low sales prices of Ford Common Stock or Ford
Holdings Series A Depositary Shares, as the case may be, traded on the New York
Stock Exchange, as reported in The Wall Street Journal for New York Stock
Exchange Composite Transactions, for the period of ten trading days immediately
prior to the dividend payment date. If the Agent purchases Ford Common Stock or
Ford Holdings Series A Depositary Shares in open market transactions, the price
per share to each participant will be the average cost of all shares of Ford
Common Stock or Ford Holdings Series A Depositary Shares, as the case may be, so
purchased on the relevant dividend payment date, plus any related brokerage fees
or commissions.
The number of shares of Ford Common Stock or Ford Holdings Series A
Depositary Shares purchased for the account of a participant with respect to a
dividend payment date will depend on the amount of a participant's dividend
and/or optional cash payment and the applicable purchase price of the shares of
Ford Common Stock or Ford Holdings Series A Depositary Shares. Each
participant's account will be credited with the number of shares of Ford Common
Stock or Ford
6
<PAGE> 8
Holdings Series A Depositary Shares, as the case may be, including fractions
rounded to four decimal places, equal to the amount of his or her reinvested
cash dividend paid on Ford Series B Preferred Stock or distributed with respect
to Ford Series B Depositary Shares and/or optional cash payment divided by the
applicable purchase price per share of Ford Common Stock or Ford Holdings Series
A Depositary Shares.
5. CERTIFICATES
In general, neither certificates representing shares of Ford Common Stock
or certificates representing Ford Holdings Series A Depositary Shares
("Depositary Receipts") purchased under the Plan will be issued to participants.
Shares of Ford Common Stock or Ford Holdings Series A Depositary Shares, as the
case may be, will be credited to each participant's account as purchased.
However, certificates for any whole number of shares of Ford Common Stock and
Depositary Receipts for any whole number of Ford Holdings Series A Depositary
Shares credited to a participant's account under the Plan will be issued, upon
the written request of the participant to the Agent, at a cost to the
participant of $5.00 per certificate. Any remaining whole and fractional shares
of Ford Common Stock and Ford Holdings Series A Depositary Shares will continue
to be credited to the participant's account. Neither certificates for fractional
shares of Ford Common Stock nor Depositary Receipts for fractional Ford Holdings
Series A Depositary Shares will be issued.
6. SAFEKEEPING PROGRAM
To protect against stock certificates or Depositary Receipts being lost,
misplaced or stolen, Plan participants may deposit certificates for shares of
Ford Common Stock or Ford Holdings Series A Preferred Stock or Depositary
Receipts, as the case may be, with the Agent for credit to their Plan account.
Participants who wish to avail themselves of the safekeeping feature of the Plan
must mail their stock certificates or Depositary Receipts to Chemical Bank,
Dividend Reinvestment Department, Ford Motor Company and Ford Holdings, Inc.
Dividend Reinvestment and Stock Purchase Plan, J.A.F. Building, P.O. Box 3069,
New York, New York 10116-3069. Certificates or Depositary Receipts must be sent
by registered mail, accompanied by a completed Authorization Form specifying
that such stock certificates or Depositary Receipts are furnished for
safekeeping. There is a charge of $3.00 for the safekeeping feature of the Plan
and a check payable to Chemical Bank in such amount must be sent to the Agent
with the participant's stock certificates or Depositary Receipts.
7. STATEMENTS AND REPORTS
A Plan account will be maintained by the Agent for each participant. After
each dividend payment date for Ford Series B Preferred Stock, the Agent will
send a statement or statements to each participant for whose account purchases
were credited under the Plan on such date, indicating the amount of dividends
reinvested and optional cash payments invested, the purchase price per share of
Ford Common Stock and/or Ford Holdings Series A Depositary Shares (which will
include any related brokerage fees or commissions), the number of shares of Ford
Common Stock and/or Ford Holdings Series A Depositary Shares purchased, the
number of shares of Ford Common Stock, Ford Holdings Series A Preferred Stock
and/or Ford Holdings Series A Depositary Shares held in the participant's
account and, if shares of Ford Common Stock and/or Ford Holdings Series A
Depositary Shares were purchased from Ford or Ford Holdings, as the case may be,
the fair market value of such shares purchased under the Plan. (The fair market
value is the average of
7
<PAGE> 9
the high and low sales prices per share of Ford Common Stock or Ford Holdings
Series A Depositary Shares, as the case may be, on the dividend payment date.)
Participants should retain such statements for income tax purposes.
Participants also will receive copies of all materials sent to holders of
Ford Common Stock and Ford Holdings Series A Depositary Shares, including annual
reports, meeting notices and proxy statements.
8. VOTING RIGHTS
The Agent will vote or abstain from voting shares of Ford Common Stock,
Ford Holdings Series A Depositary Shares and shares of Ford Holdings Series A
Preferred Stock credited to the participant's account under the Plan as of the
record date for a meeting or consent of stockholders in the same manner as the
participant votes or abstains from voting by proxy or instruction any other
shares of Ford Common Stock, Ford Holdings Series A Depositary Shares and shares
of Ford Holdings Series A Preferred Stock, respectively, registered in the
participant's name, delivered to Ford, in the case of Ford Common Stock, to Ford
Holdings, in the case of Ford Holdings Series A Preferred Stock, or to the
Depositary, in the case of Ford Holdings Series A Depositary Shares, or as the
participant otherwise instructs Ford, Ford Holdings or the Depositary, as
applicable, in writing at least one business day before the meeting at which
such shares are to be voted. If the participant has no other shares registered
in his or her name, the Agent will vote all of the shares credited to the
participant's account under the Plan as of the record date as instructed by the
participant on a form to be furnished to the participant by the Agent and
returned to the Agent at least one business day before the meeting at which they
are to be voted. The Agent will refrain from voting shares for which such proxy
or such instructions are not received in accordance with this paragraph.
9. CASH DIVIDENDS; STOCK DIVIDENDS AND SPLITS
Cash dividends paid on shares of Ford Common Stock or shares of Ford
Holdings Series A Preferred Stock held in a participant's account under the Plan
or cash dividends distributed with respect to Ford Holdings Series A Depositary
Shares held in a participant's account under the Plan, will be paid by the Agent
to the participant by check mailed to the participant promptly after receipt by
the Agent of such cash dividends. Alternatively, a participant may elect to have
the cash dividends paid on shares of Ford Common Stock held in such
participant's account under the Plan further reinvested in additional shares of
Ford Common Stock by participating with respect to such shares in the Ford
Dividend Investment Plan offered by Chemical Bank and may elect to have the cash
dividends paid on or distributed with respect to shares of Ford Holdings Series
A Preferred Stock or Ford Holdings Series A Depositary Shares held in such
participant's account under the Plan further reinvested in additional Ford
Holdings Series A Depositary Shares by participating with respect to such shares
in the Ford Holdings Dividend Reinvestment and Stock Purchase Plan for which
Chemical Bank also acts as agent. In order to participate in either or both of
these other plans, participants will be required to submit a separate
authorization form for each such plan. Such forms are available from Chemical
Bank at the address set forth on page 5 hereof.
Any shares of Ford Common Stock, shares of Ford Holdings Series A Preferred
Stock or Ford Holdings Series A Depositary Shares distributed (whether as a
dividend in or as a result of a split of such shares or otherwise) with respect
to shares of Ford Common Stock, shares of Ford Holdings Series A Preferred Stock
or Ford Holdings Series A Depositary Shares held for the participant by the
Agent, will be credited to the participant's Plan account and, as to shares of
Ford Common Stock,
8
<PAGE> 10
shares of Ford Holdings Series A Preferred Stock or Ford Holdings Series A
Depositary Shares registered in the name of the participant, will be mailed
directly to the participant in the usual manner.
10. ASSIGNABILITY
No shares of Ford Common Stock, shares of Ford Holdings Series A Preferred
Stock or Ford Holdings Series A Depositary Shares held by the Agent under the
Plan may be transferred or pledged unless the participant requests that
certificates or Depositary Receipts, as the case may be, for such shares be
issued to the participant at a cost to the participant of $5.00 per certificate
or Depositary Receipt. Such shares then will no longer participate in the Plan.
11. WITHDRAWAL FROM THE PLAN
A participant may withdraw from the Plan at any time by sending a written
notice of withdrawal to the Agent. If such notice is received by the Agent after
the record date for the payment of a dividend on Ford Series B Preferred Stock,
the withdrawal will not be effective until after the payment of such dividend.
When a participant withdraws from the Plan, or upon termination of the Plan by
Ford and Ford Holdings, certificates for any whole shares of Ford Common Stock
and Ford Holdings Series A Preferred Stock and Depositary Receipts for any
fractional share (which is an integral multiple of 1/4,000) of any Ford Holdings
Series A Preferred Stock or whole Ford Holdings Series A Depositary Shares
credited to the participant's account under the Plan will be issued to the
participant and a cash payment made for any fractional share of Ford Common
Stock and Ford Holdings Series A Depositary Shares, unless the participant
requests that all whole or fractional shares of Ford Holdings Series A Preferred
Stock or whole shares of Ford Common Stock or Ford Holdings Series A Depositary
Shares be sold. If a participant directs withdrawal from the Plan, the
participant will be charged an issuance fee of $5.00 per certificate or
Depositary Receipt.
If the participant requests that whole or fractional shares of Ford
Holdings Series A Preferred Stock or whole shares of Ford Common Stock or Ford
Holdings Series A Depositary Shares credited to his or her account be sold by
the Agent, the Agent will sell such shares as soon as practicable following
receipt of the request and will send the participant a check for the net
proceeds, after deducting any brokerage fees or commissions and transfer taxes,
and a transaction fee of $15.00 for each sale.
The Agent may combine full and fractional shares of Ford Common Stock and
Ford Holdings Series A Preferred Stock and whole Ford Holdings Series A
Depositary Shares sold with those of other terminating participants sold on the
same day, in which case the net proceeds to each participant will be based on
the average sales prices of all such shares of Ford Common Stock or Ford
Holdings Series A Preferred Stock or Ford Holdings Series A Depositary Shares,
as the case may be, sold on such day.
There are no requirements for certification of a participant's request to
terminate participation or to authorize the Agent to sell a participant's shares
of Ford Common Stock or Ford Holdings Series A Preferred Stock or Ford Holdings
Series A Depositary Shares, unless a legal transfer, such as a transfer
involving fiduciaries, is involved, in which event certification requirements
will vary depending upon governing state law.
Participants who withdraw from the Plan may re-enroll at any time by
sending to the Agent a completed and signed Authorization Form.
9
<PAGE> 11
12. MODIFICATION OR TERMINATION
Ford and Ford Holdings may amend, modify, suspend or terminate the Plan,
upon mailing notice to each participant, but such action shall have no
retroactive effect that would prejudice the interests of the participants.
Notice of any such amendment, modification, suspension or termination will be
sent to each participant at the participant's last known address.
13. RESPONSIBILITY
Neither Ford nor Ford Holdings, nor the Agent in administering the Plan,
shall be liable for any act performed in good faith or for any good faith
omission to act, including, without limitation, any claim of liability (a)
arising out of failure to terminate a participant's account upon such
participant's death prior to the Agent's actual receipt of a notice in writing
of such death from a person authorized to give such notice, (b) with respect to
the prices at which shares of Ford Common Stock or Ford Holdings Series A
Depositary Shares are purchased for a participant's account and the times when
such purchases are made or (c) with respect to the market value or any
fluctuation in the market value after purchase of shares of Ford Common Stock or
Ford Holdings Series A Depositary Shares or sale of shares of Ford Common Stock
or Ford Holdings Series A Preferred Stock or Ford Holdings Series A Depositary
Shares for a participant's account.
14. GOVERNING LAW
The Plan and its operation shall be governed by and construed in accordance
with the laws of the State of New York.
TAXATION
GENERAL
Owners of Ford Holdings Series A Depositary Shares are treated for federal
income tax purposes as if they were owners of Ford Holdings Series A Preferred
Stock represented by such Ford Holdings Series A Depositary Shares and,
accordingly, must take into account for federal income tax purposes income and
deductions to which they would be entitled if they were holders of such Ford
Holdings Series A Preferred Stock.
INCOME TAX INFORMATION WITH RESPECT TO THE PLAN
Dividends that are reinvested under the Plan are subject to federal and
other income taxes just as if they had been received in cash.
The tax basis in any shares of Ford Common Stock and Ford Holdings Series A
Depositary Shares purchased under the Plan is the price paid for the shares. In
the case of shares of Ford Common Stock and Ford Holdings Series A Depositary
Shares purchased by the Agent on the open market, the purchase price will
include a participant's proportionate part of any related brokerage fees or
commissions.
A participant in the Plan will not realize any taxable income when he or
she receives certificates for whole shares of Ford Common Stock or Ford Holdings
Series A Preferred Stock or Depositary Receipts for whole Ford Holdings Series A
Depositary Shares credited to his or her account, either upon request for such
certificates or Depositary Receipts or upon withdrawal from or termination of
10
<PAGE> 12
the Plan. However, a participant will realize gain or loss when whole shares of
Ford Common Stock or whole Ford Holdings Series A Depositary Shares acquired
under the Plan are sold or exchanged, either by the Agent or by the participant
upon or after withdrawal from or termination of the Plan. A participant also
will realize gain or loss upon withdrawal from or termination of the Plan when
he or she receives a cash payment for a fractional share of Ford Common Stock or
Ford Holdings Series A Depositary Shares credited to his or her account.
The amount of such gain or loss will be the difference between the amount
the participant receives upon the sale or exchange of his or her whole or
fractional shares of Ford Common Stock and/or Ford Holdings Series A Depositary
Shares and his or her basis in such shares. For most participants, gain or loss
will be capital gain or loss.
A participant's holding period for any shares of Ford Common Stock and Ford
Holdings Series A Depositary Shares acquired pursuant to the Plan will begin on
the day following the acquisition of such shares for such participant's Plan
account.
If a participant is subject to United States income tax withholding, the
amount of tax required to be withheld will reduce the amount applied to the
purchase of shares of Ford Common Stock and Ford Holdings Series A Depositary
Shares under the Plan.
A participant should retain his or her statements to determine the tax
basis of shares of Ford Common Stock and Ford Holdings Series A Depositary
Shares acquired under the Plan. For replacement statements from the immediately
preceding year, participants will be charged $5.00 per statement. For
replacement statements for prior years, participants will be charged $20.00 per
statement for each year.
LEGAL OPINIONS
The legality of Ford Common Stock, Ford Holdings Series A Preferred Stock
and Ford Holdings Series A Depositary Shares offered hereby has been passed on
for Ford, in the case of Ford Common Stock, and Ford Holdings, in the case of
Ford Holdings Series A Preferred Stock and Ford Holdings Series A Depositary
Shares, by J. M. Rintamaki, Esq., Secretary of Ford and Ford Holdings and an
Assistant General Counsel of Ford. Mr. Rintamaki is a full-time employee of Ford
and owns, and holds options to purchase, shares of Ford Common Stock and owns
depositary shares, each representing 1/1,000 of a share of Series A Cumulative
Convertible Preferred Stock of Ford.
EXPERTS
The financial statements which are incorporated in this Prospectus by
reference to the Ford's 1993 10-K Report and Ford Holdings' 1993 10-K Report
have been audited by Coopers & Lybrand, independent certified public
accountants, to the extent indicated in their reports therein, and have been so
incorporated in reliance on the reports, each of which includes an explanatory
paragraph indicating that Ford or Ford Holdings, as the case may be, changed its
method of accounting for postretirement benefits other than pensions and income
taxes in 1992, of that firm given on their authority as experts in accounting
and auditing.
With respect to the unaudited financial information of Ford and Ford
Holdings for the periods ended or at March 31, 1994 and June 30, 1994,
incorporated in this Prospectus by reference to the Ford's 10-Q Reports and Ford
Holdings' 10-Q Reports, respectively, Coopers & Lybrand have reported that they
have applied limited procedures in accordance with professional standards for a
11
<PAGE> 13
review of such information. However, their reports issued in connection with the
interim financial information state that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. The accountants
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their reports on the unaudited interim financial information because
such reports do not constitute "reports" or a "part" of the registration
statement prepared or certified by the accountants within the meaning of
Sections 7 and 11 of such Act.
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<PAGE> 14
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No dealer, salesman or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus and,
if given or made, such information or representations must not be relied upon as
having been authorized by Ford or Ford Holdings, the Agent or any other person.
This Prospectus does not constitute an offer of any securities other than those
to which it relates or an offer to sell, or a solicitation of an offer to buy,
to any person in any jurisdiction where such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that the information
contained herein is correct as of any time subsequent to the date hereof.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
---
<S> <C>
Available Information.................... 2
Incorporation of Certain Documents by
Reference.............................. 2
Ford Motor Company....................... 3
Ford Holdings, Inc....................... 3
Use of Proceeds.......................... 4
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends.............................. 4
Description of the Plan.................. 5
Taxation................................. 10
Legal Opinions........................... 11
Experts.................................. 11
</TABLE>
FORD MOTOR COMPANY
AND
FORD HOLDINGS, INC.
DIVIDEND REINVESTMENT AND
STOCK PURCHASE PLAN
(LOGO)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 15
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the offering described in this Registration Statement:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee... $ 1,938.24
Printing and engraving................................ 40,000.00
Accountants' fees..................................... --
Blue Sky fees and expenses............................ 20,000.00
Fee and Expenses of Depositary and Transfer Agent..... --
Dividend Reinvestment Agent Fees...................... 100,000.00
Stock Exchange listing fees........................... 50,000.00
Miscellaneous expenses................................ 10,000.00
------------
Total.......................................... $ 221,938.24
============
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides as follows:
145. Indemnification of officers, directors, employees and agents;
insurance--
(a) A corporation shall have power to indemnify any person 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 he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his 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 which he reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that
his conduct was unlawful.
(b) A corporation shall have power to indemnify any person 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 he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation
and 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 to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably
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entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b), or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (unless ordered
by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by
the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil, criminal, administrative or investigative
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 such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Section. Such expenses
(including attorneys' fees) incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the board of directors
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability
under the provisions of this section.
(h) For purposes of this Section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee, or agent
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<PAGE> 17
with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in
a manner "not opposed to the best interests of the corporation" as referred
to in this Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Article Ninth, Section 5 of Ford's Restated Certificate of Incorporation
includes the following provisions:
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION AND INSURANCE
5.1. LIMITATION ON LIABILITY OF DIRECTORS. A director of the corporation
shall not be personally liable to the corporation or its stockholders 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 stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 5.1 of Article NINTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
5.2. EFFECT OF ANY REPEAL OR MODIFICATION OF SUBSECTION 5.1. Any repeal or
modification of subsection 5.1 of this Article NINTH by the stockholders of the
corporation shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
5.3. INDEMNIFICATION AND INSURANCE.
5.3a. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorney's fees, amounts paid or to be paid in settlement and excise
taxes or penalties imposed on fiduciaries with respect to (i) employee benefit
plans, (ii) charitable organizations or (iii) similar matters) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to
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<PAGE> 18
be a director, officer or employee and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that the corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person (other than pursuant to
subsection 5.3b of this Article NINTH) only if such proceeding (or part thereof)
was authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this subsection 5.3a of Article NINTH shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer, including
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this subsection 5.3a of Article
NINTH or otherwise.
5.3b. RIGHT OF CLAIMANT TO BRING SUIT. If a claim which the corporation is
obligated to pay under subsection 5.3a of this Article NINTH is not paid in full
by the corporation within 60 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
5.3c. MISCELLANEOUS. The provisions of this Section 5.3 of Article NINTH
shall cover claims, actions, suits and proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 5.3 of Article NINTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
5.3d. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 5.3 of Article NINTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
5.3e. INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
5.3f. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to
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be paid by the corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any agent of the corporation to the fullest
extent of the provisions of this Section 5.3 of Article NINTH with respect to
the indemnification and advancement of expenses of directors, officers and
employees of the corporation.
Paragraph XXVI (formerly Paragraph XXIV) of Ford's Savings and Stock
Investment Plan provides as follows with respect to the members of the Savings
and Stock Investment Plan Committee:
No member of the Committee or alternate for a member or director,
officer or employee of any Participating Company shall be liable for any
action or failure to act under or in connection with the Plan, except for
his own bad faith; provided, however, that nothing herein shall be deemed
to relieve any such person from responsibility or liability for any
obligation or duty under ERISA. Each director, officer, or employee of the
Company who is or shall have been designated to act on behalf of the
Company and each person who is or shall have been a member of the Committee
or an alternate for a member or a director, officer or employee of any
Participating Company, as such, shall be indemnified and held harmless by
the Company against and from any and all loss, cost, liability or expense
that may be imposed upon or reasonably incurred by him in connection with
or resulting from any claim, action, suit or proceeding to which he may be
a party or in which he may be involved by reason of any action taken or
failure to act under the Plan and against and from any and all amounts paid
by him in settlement thereof (with the Company's written approval) or paid
by him in satisfaction of a judgment in any such action, suit or
proceeding, except a judgment in favor of the Company based upon a finding
of his bad faith; subject, however, to the condition that, upon the
assertion or institution of any such claim, action, suit or proceeding
against him, he shall in writing give the Company an opportunity, at its
own expense, to handle and defend the same before he undertakes to handle
and defend it on his own behalf. The foregoing right of indemnification
shall not be exclusive of any other right to which such person may be
entitled as a matter of law or otherwise, or any power that a Participating
Company may have to indemnify him or hold him harmless.
Pursuant to underwriting agreements filed as exhibits to registration
statements relating to underwritten offerings of securities issued or guaranteed
by Ford, the underwriters have agreed to indemnify Ford, each officer and
director of Ford and each person, if any, who controls Ford within the meaning
of the Securities Act of 1933, against certain liabilities, including
liabilities under said Act.
Ford is insured for liabilities it may incur pursuant to its Certificate of
Incorporation relating to the indemnification of its directors, officers and
employees. In addition, directors, officers and certain key employees are
insured against certain losses which may arise out of their employment and which
are not recoverable under the indemnification provisions of Ford's Certificate
of Incorporation.
Pursuant to Paragraph X of the Ford Money Market Account Program (the
"Program") each member and alternate for a member of the Program Committee and
each officer and director of each Participating Company is indemnified against
all loss, cost, liability or expense reasonably incurred in connection with or
resulting from any claim, action, suit or proceeding in which such person is
involved or may be involved by reason of any action or failure to act under the
Program.
Pursuant to Paragraph VIII of the Ford Money Market Account Plan (the
"Plan") each member and alternate member of the Plan Committee and each officer,
director and employee of registrants is indemnified against all loss, cost,
liability or expense reasonably incurred in connection with or resulting from
any claim, action, suit or proceeding in which such person is involved or may be
involved by reason of any action or failure to act under the Plan.
II-5
<PAGE> 20
Article Seventh of Ford Holdings' Certificate of Incorporation includes the
following provisions:
LIMITATION ON LIABILITY OF DIRECTORS;
INDEMNIFICATION AND INSURANCE
3.1. LIMITATION ON LIABILITY OF DIRECTORS. A director of the corporation
shall not be personally liable to the corporation or its stockholders 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 stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 3.1 of Article SEVENTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
3.2. EFFECT OF ANY REPEAL OR MODIFICATION OF SUBSECTION 3.1. Any repeal or
modification of subsection 3.1 of this Article SEVENTH by the stockholders of
the corporation shall not adversely affect any right or protection of a director
of the corporation existing at the time of such repeal or modification.
3.3. INDEMNIFICATION AND INSURANCE.
3.3A. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorneys' fees, amounts paid or to be paid in settlement and excise
taxes imposed on fiduciaries with respect to (i) employee benefit plans, (ii)
charitable organizations or (iii) similar matters) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer or employee and
shall inure to the benefit of his or her heirs, executors and administrators;
provided, however, that the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person (other than pursuant to subsection 3.3b of this Article SEVENTH)
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the corporation. The right to indemnification conferred in this
subsection 3.3a of Article SEVENTH shall be a contract right and shall include
the right to be paid by the corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that, if
the Delaware General Corporation Law requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or
II-6
<PAGE> 21
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding shall be made only upon
delivery to the corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under
this subsection 3.3a of Article SEVENTH or otherwise.
3.3B. RIGHT OF CLAIMANT TO BRING SUIT. If a claim which the corporation is
obligated to pay under subsection 3.3a of this Article SEVENTH is not paid in
full by the corporation within 60 days after a written claim has been received
by the corporation, the claimant may at any time thereafter bring suit against
the corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its Board of
Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
3.3C. MISCELLANEOUS. The provisions of this Section 3.3 of Article SEVENTH
shall cover claims, actions, suits or proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 3.3 of Article SEVENTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
3.3D. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 3.3 of Article SEVENTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-law,
agreement, vote of stockholders or disinterested directors or otherwise.
3.3E. INSURANCE. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the corporation
would have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
3.3F. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The corporation may, to
the extent authorized from time to time by the Board of Directors, grant rights
to indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
agent of the corporation to the fullest extent of the provisions of this Section
3.3 of Article SEVENTH with respect to the indemnification and advancement of
expenses of directors, officers and employees of the corporation.
Pursuant to sales agency and underwriting agreements relating to offerings
of certain of its securities, certain sales agents and underwriters have agreed
to indemnify Ford Holdings, each officer and director of Ford Holdings and each
person, if any, who controls Ford Holdings within the meaning of the Securities
Act of 1933, against certain liabilities, including liabilities under said Act.
II-7
<PAGE> 22
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------
<S> <C>
4.1 Restated Certificate of Incorporation of Ford
4.2(a) By-Laws of Ford as amended through December 9, 1993
4.3(b) Certificate of Incorporation of Ford Holdings
4.4(c) Certificate of Designations of Ford Holdings' Flexible Rate Auction Preferred Stock
(Exchange)
4.4.1(d) Certificate of Amendment to the Certificate of Designations of Ford Holdings' Flexible Rate
Auction Preferred Stock (Exchange) filed December 27, 1991
4.4.2(e) Certificate of Amendment to the Certificate of Designations of Ford Holdings' Flexible Rate
Auction Preferred Stock (Exchange) filed June 1, 1992
4.5(f) Form of Ford Holdings' Series A Preferred Stock Certificate
4.6(g) Certificate of Designations of Ford Holdings' Series A Preferred Stock
4.7(h) Certificate of Designations of Ford Holdings' Series B Preferred Stock
4.8(i) Form of Certificate of Designations of Ford Holdings' Series C Preferred Stock
4.9(j) Certificate of Designations of Ford Holdings' Series D Preferred Stock
4.10 Form of Depositary Receipt (included in Exhibit 4.11)
4.11(k) Deposit Agreement
5 Opinion of J. M. Rintamaki, Secretary of Ford and Ford Holdings and an Assistant General
Counsel of Ford, as to the legality of the securities offered hereby
12.1 Computation of Ford's Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
12.2 Computation of Ford Holdings' Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends
15 Letter of Coopers & Lybrand regarding unaudited interim financial information
23.1 Consent of J. M. Rintamaki (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand
24.1 Powers of Attorney -- Ford
24.2 Powers of Attorney -- Ford Holdings
99(l) Stockholder Authorization Form
</TABLE>
- -------------------------
(a) Incorporated herein by reference to Exhibit 3-B to Ford's Annual Report on
Form 10-K for the year ended December 31, 1993, File No. 1-3950.
(b) Incorporated herein by reference to Exhibit 3-A to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1989, File No. 0-18263.
(c) Incorporated herein by reference to Exhibit 4-A-1 of Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1990, File No. 0-18263.
(d) Incorporated herein by reference to Exhibit 4-A-2 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1991, File No. 0-18263.
(e) Incorporated herein by reference to Exhibit 4-A-4 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(f) Incorporated herein by reference to Exhibit 4.3 of the Registration
Statement on Form S-3 of Ford Holdings, File No. 33-47931.
(g) Incorporated herein by reference to Exhibit 4-A-5 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(h) Incorporated herein by reference to Exhibit 4-A-6 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(i) Incorporated herein by reference to Exhibit 2.7 to Ford Holdings'
Registration Statement on Form 8-A dated August 24, 1993, File No. 0-18263.
(j) Incorporated herein by reference to Exhibit 4.1 to Ford Holdings' Current
Report on Form 8-K dated August 3, 1994, File No. 0-18263.
(k) Incorporated herein by reference to Exhibit 4-C-1 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(l) Incorporated herein by reference to Exhibit 28 to the Registration Statement
on Form S-3 of Ford and Ford Holdings, File No. 33-55474.
II-8
<PAGE> 23
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(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 statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration 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 (ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrants 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 purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of each of the registrants' annual reports pursuant to
section 13(a) or 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 provisions described under Item 15 above, or
otherwise, the registrants have 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, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants 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 applicable 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.
II-9
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Ford Motor Company, certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Dearborn, Michigan, on the 22nd day of August, 1994.
FORD MOTOR COMPANY
By: ALEX TROTMAN*
------------------------------------
(Alex Trotman)
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------- ----------------------------
<S> <C> <C>
Director and Chairman of
the Board of Directors,
President and Chief
Executive Officer
(principal executive
ALEX TROTMAN* officer)
......................................
(ALEX TROTMAN)
COLBY H. CHANDLER* Director
......................................
(COLBY H. CHANDLER)
MICHAEL D. DINGMAN* Director
......................................
(MICHAEL D. DINGMAN)
Director, Vice
President--Ford and
President and Chief August 22, 1994
Operating Officer, Ford
EDSEL B. FORD II* Motor Credit Company
......................................
(EDSEL B. FORD II)
Director and Chairman of
WILLIAM CLAY FORD* the Finance Committee
......................................
(WILLIAM CLAY FORD)
Director and Vice
President--Commercial
WILLIAM CLAY FORD, JR.* Truck Vehicle Center
......................................
(WILLIAM CLAY FORD, JR.)
Director and Vice
ALLAN D. GILMOUR* Chairman
......................................
(ALLAN D. GILMOUR)
</TABLE>
II-10
<PAGE> 25
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------- ----------------------------
<S> <C> <C>
ROBERTO C. GOIZUETA* Director
......................................
(ROBERTO C. GOIZUETA)
IRVINE O. HOCKADAY, JR.* Director
......................................
(IRVINE O. HOCKADAY, JR.)
Director
......................................
(DREW LEWIS)
ELLEN R. MARRAM* Director
......................................
(ELLEN R. MARRAM)
KENNETH H. OLSEN* Director
......................................
(KENNETH H. OLSEN)
CARL E. REICHARDT* Director
......................................
(CARL E. REICHARDT)
Director and Vice
Chairman and Chief
LOUIS R. ROSS* Technical Officer August 22, 1994
......................................
(LOUIS R. ROSS)
Director and Executive
Vice President and Chief
Financial Officer
(principal financial
STANLEY A. SENEKER* officer)
......................................
(STANLEY A. SENEKER)
Director
......................................
(CLIFTON R. WHARTON, JR.)
Vice
President--Controller
(principal accounting
MURRAY L. REICHENSTEIN* officer)
......................................
(MURRAY L. REICHENSTEIN)
*By: /s/ LOUIS J. GHILARDI
- ------------------------------------------
(LOUIS J. GHILARDI, ATTORNEY-IN-FACT)
</TABLE>
II-11
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Ford Holdings, Inc., certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Dearborn, Michigan, on the 22nd day of August, 1994.
FORD HOLDINGS, INC.
By: S. A. SENEKER*
--------------------------------------
(S. A. Seneker)
Chairman of the Board of Directors
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------------------------------- ------------------------ -------------------
<S> <C> <C>
Chairman of the Board of
Directors and Chief
Executive Officer and
Director (principal
S. A. SENEKER* executive officer)
.............................................
(S. A. SENEKER)
Vice President and
W. F. BLOOD* Director
.............................................
(W. F. BLOOD)
Vice President--
Treasurer and Director
(principal financial
M. S. MACDONALD* officer)
.............................................
(M. S. MACDONALD)
Vice President--
Controller and Director
(principal accounting
T. F. MARRS* officer) August 22, 1994
.............................................
(T. F. MARRS)
Vice President and
D. N. MCCAMMON* Director
.............................................
(D. N. MCCAMMON)
D. E. RICHARDSON* Director
.............................................
(D. E. RICHARDSON)
H. JAMES TOFFEY, JR.* Director
.............................................
(H. JAMES TOFFEY, JR.)
President and Chief
Operating Officer and
K. WHIPPLE* Director
.............................................
(K. WHIPPLE)
*By: /s/ L. J. GHILARDI
.............................................
(L. J. GHILARDI,
ATTORNEY-IN-FACT)
</TABLE>
II-12
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------
<S> <C>
4.1 Restated Certificate of Incorporation of Ford
4.2(a) By-Laws of Ford as amended through December 9, 1993
4.3(b) Certificate of Incorporation of Ford Holdings
4.4(c) Certificate of Designations of Ford Holdings' Flexible Rate Auction Preferred Stock
(Exchange)
4.4.1(d) Certificate of Amendment to the Certificate of Designations of Ford Holdings' Flexible Rate
Auction Preferred Stock (Exchange) filed December 27, 1991
4.4.2(e) Certificate of Amendment to the Certificate of Designations of Ford Holdings' Flexible Rate
Auction Preferred Stock (Exchange) filed June 1, 1992
4.5(f) Form of Ford Holdings' Series A Preferred Stock Certificate
4.6(g) Certificate of Designations of Ford Holdings' Series A Preferred Stock
4.7(h) Certificate of Designations of Ford Holdings' Series B Preferred Stock
4.8(i) Form of Certificate of Designations of Ford Holdings' Series C Preferred Stock
4.9(j) Certificate of Designations of Ford Holdings' Series D Preferred Stock
4.10 Form of Depositary Receipt (included in Exhibit 4.11)
4.11(k) Deposit Agreement
5 Opinion of J. M. Rintamaki, Secretary of Ford and Ford Holdings and an Assistant General
Counsel of Ford, as to the legality of the securities offered hereby
12.1 Computation of Ford's Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
12.2 Computation of Ford Holdings' Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends
15 Letter of Coopers & Lybrand regarding unaudited interim financial information
23.1 Consent of J. M. Rintamaki (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand
24.1 Powers of Attorney -- Ford
24.2 Powers of Attorney -- Ford Holdings
99(l) Stockholder Authorization Form
</TABLE>
- -------------------------
(a) Incorporated herein by reference to Exhibit 3-B to Ford's Annual Report on
Form 10-K for the year ended December 31, 1993, File No. 1-3950.
(b) Incorporated herein by reference to Exhibit 3-A to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1989, File No. 0-18263.
(c) Incorporated herein by reference to Exhibit 4-A-1 of Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1990, File No. 0-18263.
(d) Incorporated herein by reference to Exhibit 4-A-2 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1991, File No. 0-18263.
(e) Incorporated herein by reference to Exhibit 4-A-4 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(f) Incorporated herein by reference to Exhibit 4.3 of the Registration
Statement on Form S-3 of Ford Holdings, File No. 33-47931.
(g) Incorporated herein by reference to Exhibit 4-A-5 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(h) Incorporated herein by reference to Exhibit 4-A-6 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(i) Incorporated herein by reference to Exhibit 2.7 to Ford Holdings'
Registration Statement on Form 8-A dated August 24, 1993, File No. 0-18263.
(j) Incorporated herein by reference to Exhibit 4.1 to Ford Holdings' Current
Report on Form 8-K dated August 3, 1994, File No. 0-18263.
(k) Incorporated herein by reference to Exhibit 4-C-1 to Ford Holdings' Annual
Report on Form 10-K for the year ended December 31, 1992, File No. 0-18263.
(l) Incorporated herein by reference to Exhibit 28 to the Registration Statement
on Form S-3 of Ford and Ford Holdings, File No. 33-55474.
<PAGE> 1
EXHIBIT 4.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
FORD MOTOR COMPANY
-------------------------
RESTATED
CERTIFICATE OF INCORPORATION
-------------------------
June 6, 1994
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Name of Corporation............................................................................. 1
Registered Office and Registered Agent.......................................................... 1
Purposes........................................................................................ 1
Capital Stock................................................................................... 3
1. Voting Powers and Rights................................................................. 3
1.1. Generally........................................................................... 3
1.2. Common Stock........................................................................ 3
1.3. Class B Stock....................................................................... 3
1.3a. 40% of Total Voting Power...................................................... 3
1.3b. 30% of Total Voting Power...................................................... 4
1.3c. One Vote per Share Voting Power................................................ 4
1.3d. Computations................................................................... 4
1.4. No Cumulative Voting................................................................ 4
1.5. Quorum.............................................................................. 4
1.6. Manner of Voting.................................................................... 4
1.7. Class Vote by Class B Stock......................................................... 4
1.8. Preferred Stock..................................................................... 5
2. Ownership and Conversion of Class B Stock................................................ 5
2.1. Ownership of Class B Stock.......................................................... 5
2.2. Transfers of Class B Stock on Corporate Books....................................... 6
2.3. Conversion of Class B Stock for the Purpose of Sale or Other Disposition............ 8
2.4. Ultimate Convertibility of Class B Stock for Any Purpose............................ 8
2.5. Legend on Certificates for Class B Stock............................................ 9
2.6. Violations of Subsections 2.1 and 2.2............................................... 9
2.7. Definitions; Verification of Affidavits............................................. 9
3. General Provisions With Respect to Conversions........................................... 10
3.1. Manner of Effecting Conversions..................................................... 10
3.2. Dividends........................................................................... 10
3.3. Prohibition against Reissue......................................................... 10
3.4. Reservation of Common Stock......................................................... 10
3.5. Investigation of Facts.............................................................. 10
4. Subscription Rights...................................................................... 11
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
4.1. Special Right of Subscription -- Class B Stock...................................... 11
4.2. Other Subscription Rights Denied.................................................... 11
4.3. Discretionary Offering of Common Stock.............................................. 11
5. Rights to Dividends...................................................................... 11
6. Adjustments.............................................................................. 11
6.1. Increase in Outstanding Stock....................................................... 11
6.2. Consolidation or Combination of Shares.............................................. 12
7. All Shares Otherwise Equal............................................................... 12
8. Preferred Stock.......................................................................... 13
8.1. Preferred Stock..................................................................... 13
8.2. Full Voting Preferred Stock......................................................... 14
9. Miscellaneous Provisions................................................................. 14
9.1. Original Stock Ledger Conclusive.................................................... 14
9.2. Treasury Stock Not Outstanding...................................................... 15
9.3. Singular and Plural................................................................. 15
9.4. References.......................................................................... 15
9.5. Captions or Headings................................................................ 15
10. Series A Cumulative Convertible Preferred Stock......................................... 15
11. Series B Cumulative Preferred Stock..................................................... 27
Original Capital................................................................................ 32
Original Subscribers............................................................................ 32
Duration........................................................................................ 32
Property of Stockholders Not Subject to Corporate Debts......................................... 32
Management of Business.......................................................................... 33
1. Powers of the Board of Directors......................................................... 33
1.1. General............................................................................. 33
1.2. Powers Conferred by By-Laws......................................................... 33
2. Meeting, Officers and Books.............................................................. 34
3. Validity of Contract..................................................................... 34
4. Ratification............................................................................. 34
5. Limitation on Liability of Directors; Indemnification and Insurance...................... 34
5.1. Limitation on Liability of Directors................................................ 34
5.2. Effect of Any Repeal or Modification of Subsection 5.1.............................. 35
5.3. Indemnification and Insurance....................................................... 35
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
<S> <C>
5.3a. Right to Indemnification....................................................... 35
5.3b. Right of Claimant to Bring Suit................................................ 35
5.3c. Miscellaneous.................................................................. 36
5.3d. Non-Exclusivity of Rights...................................................... 36
5.3e. Insurance...................................................................... 36
5.3f. Indemnification of Agents of the Corporation................................... 36
6. Limitation of Actions.................................................................... 36
Amendments...................................................................................... 37
</TABLE>
<PAGE> 5
CERTIFICATION
The undersigned officer of Ford Motor Company, a Delaware
corporation, does hereby certify that the following is a true and
correct copy of the Restated Certificate of Incorporation of the
Company in effect on the date hereof.
Witness my hand and the seal of the Company this day of
19
------------------------------------------
Secretary
<PAGE> 6
ARTICLES FIRST, SECOND & THIRD
RESTATED
CERTIFICATE OF INCORPORATION
OF
FORD MOTOR COMPANY
-------------------------
FIRST. The name of the corporation is
FORD MOTOR COMPANY
SECOND. Its registered office in the State of Delaware is located at 1209 Orange
Street in the City of Wilmington, County of New Castle. The name and address of
its registered agent is THE CORPORATION TRUST COMPANY, 1209 Orange Street,
Wilmington, Delaware 19801.
THIRD. The nature of the business of the corporation, and the objects or
purposes proposed to be transacted, promoted or carried on by it, are:
1. To manufacture, buy, sell, deal in and with automobiles, trucks,
cars, tractors, farm machinery and implements, aircraft, landcraft and
watercraft, and vehicles and articles of every type and description, and
parts, accessories and equipment therefor and for use in connection
therewith, and generally to conduct a manufacturing business in all its
branches;
2. To manufacture, buy, sell, deal in, and to engage in, conduct and
carry on the business of manufacturing, buying, selling and dealing in
goods, commodities, wares, merchandise, services and real and personal
property of every type and description;
3. To engage in and carry on the business of mining, drilling for,
preparing for market, buying, selling, exchanging, producing and otherwise
dealing in coal, oil, gas, minerals, ores and metals, and in the products
and by-products thereof, of every type and description; to buy, sell,
exchange, lease, acquire and deal in lands, mines, coal, oil, gas and
mineral rights and claims, and to conduct all business appertaining
thereto;
4. To buy, sell, exchange, lease, acquire, deal in and with, and
operate boats, vessels, railroads and means of transportation of every type
and description and to conduct all business appertaining thereto;
5. To render management, supervisory, accounting, styling, technical
and other services and advice for any person, firm, association or
corporation, domestic or foreign, by contract or otherwise, and to receive
therefor fixed or contingent compensation, or compensation in the form of
commissions, management fees, shares in gross or net receipts or profits,
or in any other manner, or upon any other terms whatsoever, or so to act
without direct compensation;
1
<PAGE> 7
ARTICLE THIRD
6. To sow, cultivate and harvest agricultural products and products of
the soil; to breed, feed, raise, slaughter, store, pack, sell and deal in
and with livestock and products therefrom; to operate greenhouses, hotbeds
and cold frames for the raising of plants, shrubs and flowers; in general
to conduct in all their several departments and branches the businesses of
agriculturists, farmers, fruit growers, dairymen, stock raisers,
slaughterers, packers, gardeners, nurserymen and florists;
7. To improve, manage, develop, sell, assign, transfer, lease,
mortgage, pledge, or otherwise dispose of or turn to account or deal with
all or any part of the property of the corporation and from time to time to
vary any investment or employment of capital of the corporation;
8. To borrow money, and to make and issue notes, bonds, debentures,
obligations and evidences of indebtedness of every type and description,
whether secured by mortgage, pledge or otherwise, without limit as to
amount, and to secure the same by mortgage, pledge or otherwise; and
generally to make and perform agreements and contracts of every type and
description;
9. To the same extent as natural persons might or could do, to purchase
or otherwise acquire, and to hold, own, maintain, work, develop, sell,
lease, exchange, hire, convey, mortgage or otherwise dispose of and deal
in, lands and leaseholds, and interests, estates and rights of every type
and description in real, personal or mixed property, and franchises,
rights, licenses or privileges necessary, convenient or appropriate for any
of the purposes herein expressed;
10. To apply for, obtain, register, purchase, lease or otherwise
acquire and to hold, own, use, develop, operate and introduce, and to sell,
assign, grant licenses or territorial rights in respect to, or otherwise to
turn to account or dispose of, copyrights, trademarks, trade names, brands,
labels, and registrations of the foregoing whether issued by the United
States or any other country or government, patent rights, letters patent of
the United States or of any other country or government, and inventions,
improvements and processes, whether used in connection with or secured
under letters patent or otherwise;
11. To make donations for the public welfare or for charitable,
scientific or educational purposes; and to cooperate with other
corporations or with natural persons, or to act alone, in the creation and
maintenance of community funds or of charitable, scientific, or educational
instrumentalities;
12. To acquire by purchase, subscription or otherwise, and to hold for
investment or otherwise and to use, sell, assign, underwrite, transfer,
mortgage, pledge or otherwise deal with or dispose of stocks, bonds or any
other obligations or securities of any person, firm, association or
corporation, public, private or municipal, or of the Government of the
United States or of any state, territory, colony or dependency thereof, or
of any foreign state or country; to merge or consolidate with any
corporation in such manner as may be permitted by law; to acquire, and to
pay for in cash, stocks or bonds of this corporation, or otherwise, the
good will, rights, assets and property, and to undertake or assume the
whole or any part of the obligations or liabilities, of any person, firm,
association or corporation; to aid in any manner any corporation whose
stocks, bonds or other obligations are held or in any manner guaranteed by
this corporation, or in which this corporation is in any way interested;
and to do any other act or thing for the preservation, protection,
improvement or enhancement of the value of any such stocks, bonds or other
obligations; and while the owner of such stocks, bonds or other obligations
to exercise all the rights, powers and privileges of ownership thereof, and
to exercise any and all voting powers thereon; to guarantee the payment of
dividends upon any stock, or of the principal or interest, or both, of any
bond or other obligation, and the performance of any contract; and
2
<PAGE> 8
ARTICLES THIRD & FOURTH, SECTION 1
13. To do everything necessary, suitable or proper for the
accomplishment of any purpose or the attainment of any object or the
furtherance of any power hereinbefore set forth, either alone or in
association with other corporations, firms or individuals, and to do every
other act or thing incidental or appurtenant to or growing out of or
connected with the aforesaid business or purposes, objects or powers, or
any part or parts thereof, provided the same be not inconsistent with the
laws under which the corporation is organized.
The business of the corporation is from time to time to do any one or more
of the acts and things hereinabove set forth, and it shall have power to conduct
and carry on its business, or any part thereof, and to have one or more offices,
and to exercise any or all of its corporate powers and rights in the State of
Delaware, and in the various other states, territories, colonies and
dependencies of the United States, in the District of Columbia, and in any or
all foreign countries.
The objects and purposes of the corporation amended herein shall be
construed as powers as well as objects and purposes and their enumeration herein
shall not be deemed to exclude, by inference or otherwise, any power, object or
purpose which the corporation is empowered to exercise, whether expressly or
impliedly, under the law of the State of Delaware now or hereafter in effect.
FOURTH. The total number of shares of all classes of stock which the corporation
shall have authority to issue is 3,295,058,688 shares, consisting of 30,000,000
shares of Preferred Stock of the par value of One Dollar ($1.00) each,
265,058,688 shares of Class B Stock of the par value of One Dollar ($1.00) each
and 3,000,000,000 shares of Common Stock of the par value of One Dollar ($1.00)
each.
The following is a statement of all of the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of the three classes of the stock of the corporation:
SECTION 1.
VOTING POWERS AND RIGHTS.
1.1. GENERALLY. All rights to vote and all voting power (including,
without limitation thereto, the right to elect directors) shall be vested
exclusively, in accordance with the provisions of subsections 1.1 through 1.7,
inclusive, in the holders of Class B Stock and the holders of Common Stock,
voting together without regard to class, all except as otherwise expressly
provided by subsection 1.7 or by the Board of Directors pursuant to subsection
8.1 or as otherwise expressly required by the law of the State of Delaware.
1.2. COMMON STOCK. At every meeting of the stockholders each holder of
Common Stock shall be entitled to one vote for each share of such stock held by
him.
1.3. CLASS B STOCK. At every meeting of the stockholders each holder of
Class B Stock shall be entitled, for each share of such stock held by him, to
such number of votes (which may be or include a fraction of a vote) as shall be
determined in accordance with the provisions of this subsection 1.3, which
number of votes, so determined from time to time, is hereinafter referred to as
the "Class B voting power per share."
1.3a. 40% OF TOTAL VOTING POWER. Until the total number of outstanding
shares of Class B Stock shall first fall below 60,749,880, the Class B
voting power per share shall be the quotient derived by dividing the total
number of outstanding shares of Class B Stock into a number equal to
two-thirds of the aggregate number of votes which
3
<PAGE> 9
ARTICLE FOURTH, SECTION 1
could be cast by the holders of all of the outstanding shares of (i)
Common Stock and (ii) Full Voting Preferred Stock (as defined in
subsection 8.2), if any, if they were present at the meeting.
1.3b. 30% OF TOTAL VOTING POWER. From and after the time when the total
number of outstanding shares of Class B Stock shall first fall below
60,749,880 and until such number shall first fall below 33,749,932, the
Class B voting power per share shall be the quotient derived by dividing
the total number of outstanding shares of Class B Stock into a number equal
to three-sevenths of the aggregate number of votes which could be cast by
the holders of all of the outstanding shares of (i) Common Stock and (ii)
Full Voting Preferred Stock, if any, if they were present at the meeting.
1.3c. ONE VOTE PER SHARE VOTING POWER. From and after the time when the
total number of outstanding shares of Class B Stock shall first fall below
33,749,932, the Class B voting power per share shall be one vote per share.
1.3d. COMPUTATIONS. The quotients referred to in this subsection 1.3
shall be computed to the nearest one-thousandth of a vote (or, if there be
no nearest one-thousandth, shall be computed to a ten-thousandth of a
vote).
1.4. NO CUMULATIVE VOTING. No stockholder shall be entitled to exercise
any right of cumulative voting. If, however, any stockholder should at any time
become entitled to exercise a right of cumulative voting, whether by express
requirement of the law of the State of Delaware or otherwise, then at all
elections of directors each holder of Class B Stock shall be entitled to cast
for each share of Class B Stock held by him a number of votes equal to the Class
B voting power per share then exercisable (computed as provided in subsection
1.3), each holder of Common Stock shall be entitled to cast one vote for each
share of Common Stock held by him, and each holder of Full Voting Preferred
Stock, if any, of any series shall be entitled to cast the number of votes
(which may be one vote or more or less than one vote) for each share of Full
Voting Preferred Stock held by him which the Board of Directors shall have
determined pursuant to subsection 8.1 in establishing voting rights with respect
to such series, in each case multiplied by the number of directors to be
elected, and each such holder shall be entitled to cast all of his votes for a
single director or to distribute them among the number of directors to be voted
for, or to cast his votes for any two or more of them as he may see fit.
1.5. QUORUM. At any meeting of stockholders, the presence in person or by
proxy of the holders of shares entitled to cast a majority of all of the votes
(computed, in the case of each share of Class B Stock, as provided in subsection
1.3) which could be cast at such meeting by the holders of all of the
outstanding shares of stock of the corporation entitled to vote on every matter
that is to be voted on without regard to class at such meeting shall constitute
a quorum.
1.6. MANNER OF VOTING. At every meeting of stockholders, the holders of
Class B Stock, the holders of Common Stock and the holders of Full Voting
Preferred Stock, if any, shall vote together, without regard to class, and their
votes (computed, in the case of each share of Class B Stock, as provided in
subsection 1.3) shall be counted and totalled together; and at any meeting duly
called and held at which a quorum (determined in accordance with the provisions
of subsection 1.5) is present, a majority of the votes (computed, in the case of
each share of Class B Stock, as provided in subsection 1.3) which could be cast
at such meeting upon a given question by such holders who are present in person
or by proxy shall be necessary, in addition to any vote or other action that may
be expressly required by the provisions of this Certificate of Incorporation or
by the law of the State of Delaware, to decide such question, and shall decide
such question if no such additional vote or other action is so required.
1.7. CLASS VOTE BY CLASS B STOCK. Notwithstanding any of the other
provisions of this Section 1, the corporation shall not, until the total number
of outstanding shares of Class B Stock shall first fall below 33,749,932, take
any of the following actions except with the affirmative vote of the holders of
a majority of the outstanding shares of Class B Stock,
4
<PAGE> 10
ARTICLE FOURTH, SECTIONS 1 & 2
given separately as a class, which vote shall be in addition to any vote or
other action required by the law of the State of Delaware:
(i) issue any additional shares of Class B Stock except pursuant to an
offer for subscription or purchase required by the provisions of subsection
4.3 or for the purpose of payment of a stock dividend; or
(ii) effect any reduction, by amendment of the Certificate of
Incorporation, retirement or exchange or otherwise, in the number of
outstanding shares of Class B Stock in any manner other than by conversion
into Common Stock as expressly provided in Section 2 or through voluntary
disposition thereof to the corporation by a holder of shares of Class B
Stock; or
(iii) effect any change or alteration in any provision of this Article
FOURTH, except as required by the provisions of subsection 3.3; or
(iv) merge or consolidate with or into any other corporation, or permit
any other corporation to merge or consolidate with or into it; or
(v) sell, lease or exchange all or substantially all of its property
and assets; or
(vi) transfer any assets to another corporation and in connection
therewith distribute stock or other securities of such other corporation to
the holders of stock or other securities of this corporation; or
(vii) voluntarily dissolve or liquidate.
1.8. PREFERRED STOCK. Each holder of Preferred Stock shall be entitled to
vote to the extent, if any, provided by the Board of Directors pursuant to
subsection 8.1.
SECTION 2.
OWNERSHIP AND CONVERSION OF CLASS B STOCK.
2.1. OWNERSHIP OF CLASS B STOCK. Until the time when the total number of
outstanding shares of Class B Stock shall first fall below 33,749,932, holders
of shares of such stock may (i) sell or otherwise dispose of or transfer any or
all of the shares of such stock held by them, respectively, only to persons who
at the time of transfer meet the qualifications set forth in clause (i), (ii),
(iii), (iv), (v), (vi) or (vii) of subsection 2.2, and to no other persons, or
(ii) convert any or all of such shares into shares of Common Stock for the
purpose of effecting the sale or disposition of such shares of Common Stock to
any person as provided in subsection 2.3. Until such time, no one other than
those persons in whose names shares of Class B Stock become registered on the
original stock ledger of the corporation by reason of their record ownership of
shares of Class A Common Stock or Class B Common Stock of the corporation which
are reclassified into shares of Class B Stock, or transferees or successive
transferees who at the time of transfer meet such qualifications set forth in
subsection 2.2, shall by virtue of the acquisition of a certificate for shares
of Class B Stock have the status of an owner or holder of shares of Class B
Stock or be recognized as such by the corporation or be otherwise entitled to
enjoy for his own benefit the special rights and powers of a holder of shares of
Class B Stock.
From and after the time when the total number of outstanding shares of
Class B Stock shall first fall below 33,749,932, holders of shares of such stock
may (i) sell or otherwise dispose of or transfer such shares to any person or
5
<PAGE> 11
ARTICLE FOURTH, SECTION 2
(ii) convert such shares into shares of Common Stock for any purpose as provided
in subsection 2.4, and any person may have the status of an owner or holder of
shares of Class B Stock.
Holders of shares of Class B Stock may at any and all times transfer to
any person the shares of Common Stock issuable upon conversion of such shares of
Class B Stock.
2.2. TRANSFERS OF CLASS B STOCK ON CORPORATE BOOKS. Shares of Class B
Stock shall be transferred on the books of the corporation and a new certificate
therefor issued, upon presentation at the office of the Secretary of the
corporation (or at such additional place or places as may from time to time be
designated by the Secretary or any Assistant Secretary of the corporation) of
the certificate for such shares, in proper form for transfer and accompanied by
all requisite stock transfer tax stamps, only if such certificate when so
presented shall also be accompanied by an affidavit of the record holder of such
shares stating that such certificate is being presented to effect a transfer of
such shares to any one or more of the following:
(i) a natural person who meets the qualification that he is either (A)
a natural person in whose name shares of Class B Stock became registered on
the original stock ledger of the corporation by reason of his record
ownership of shares of Class A Common Stock or Class B Common Stock of the
corporation which were reclassified into shares of Class B Stock, or (B) a
descendant (including any descendant by adoption and any descendant of an
adopted descendant) of a natural person in whose name shares of Class B
Stock were so registered by reason of such record ownership, or (C) a
spouse or surviving spouse of a natural person who is or was while living
included within the provisions of either of the foregoing subclauses (A) or
(B); or
(ii) any two or more natural persons each of whom meets the
qualification set forth in clause (i) next above; or
(iii) a transferee as trustee of a trust, created by deed or will,
which trust meets the following requirements: (1) the income thereof from
the date of transfer to such trustee shall be required to be paid to or
applied for the use and benefit of or accumulated for one or more natural
persons, concurrently or successively, all of whom meet or will meet the
qualification set forth in clause (i) above, and no other persons, except
for such portion of the income as is payable to or to be applied for the
use and benefit of or accumulated for one or more (A) other natural persons
during terms not to exceed their respective lives, who, though they do not
meet the qualification set forth in clause (i) above, are relatives of or
are or were employees or dependents of natural persons meeting such
qualification, or (B) exempt organizations (as defined in subsection 2.7)
for terms not exceeding 33 years from the date of the commencement of the
trust, and except for such accumulated income as may be required to be paid
over to others upon the death of the person for whom it was accumulated,
and (2) the principal thereof shall be required to be transferred, assigned
and paid over upon failure or termination of the interests in the income
thereof referred to in subclause (1) above; provided, however, that if the
provisions of such trust relating to the disposition of income or principal
are subject to amendment in such manner that the trust could be changed to
a trust not meeting the requirements of this clause (iii), the trustee
thereof, as such, shall have entered into a written agreement with the
corporation providing that if such trust shall be amended at any time prior
to the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932 such trustee will promptly deliver to the
corporation a copy, duly certified by such trustee, of the instrument
effecting such amendment and will, unless such trust as so amended then
meets the requirements of this clause (iii), promptly surrender the
certificates for the shares of Class B Stock then held in such trust for
conversion of such shares into an equal number of shares of Common Stock in
the manner set forth in subsection 3.1; or
6
<PAGE> 12
ARTICLE FOURTH, SECTION 2
(iv) a stock corporation (hereinafter called a "corporate holder"), not
less than 75% of the number of outstanding shares of each class of the
capital stock (other than shares of non-voting preferred stock as defined
in subsection 2.7) of which shall, at the time at which the certificate for
shares of Class B Stock is presented for transfer, be owned beneficially
and of record by natural persons who meet the qualification set forth in
clause (i) above (provided that the same natural person need not be both
the beneficial and the record owner), or be owned of record by trustees (or
successor trustees) of trusts which meet the requirements set forth in
clause (iii) above, or be so owned in part by such natural persons and so
owned in part by such trustees (or successor trustees); which corporate
holder shall have entered into a written agreement with this corporation
providing that if, at any time prior to the time when the total number of
outstanding shares of Class B Stock shall first fall below 33,749,932, less
than 75% of the number of outstanding shares of each class of the capital
stock (other than shares of non-voting preferred stock as defined in
subsection 2.7) of such corporate holder shall be so owned, then such
corporate holder will either promptly (A) transfer the shares of Class B
Stock then held by it to one or more persons who at the time of transfer
meet the qualifications set forth in clause (i), (ii), (iii), (iv), (v),
(vi) or (vii) of subsection 2.2 and cause the certificates therefor to be
duly presented for transfer into the name of such person or persons, or (B)
surrender the certificates for such shares of Class B Stock for conversion
of such shares into an equal number of shares of Common Stock, in the
manner set forth in subsection 3.1, or (C) transfer some of such shares as
provided in the foregoing subclause (A) and surrender the certificates for
the remainder of such shares for conversion as provided in the foregoing
subclause (B); or
(v) a legatee under the will of any stockholder of the corporation
deceased prior to the effective date of the reclassification of the Class A
Common Stock and the Class B Common Stock of the corporation into Class A
Stock, Class B Stock and Common Stock, such transfer being made for the
purpose of satisfying, in any manner permitted by such will, all or any
part of the claim of the said legatee in respect to a legacy of any kind
under said will; provided, however, that the aggregate number of shares of
Class B Stock transferred pursuant to this clause (v) shall not exceed
8,437,480; or
(vi) a transferee as successor trustee or as co-trustee of a trust of
which his immediate transferor was or is a trustee registered as a record
holder of such shares of Class B Stock as permitted by the provisions of
subsection 2.1; provided, however, that if the proviso in clause (iii)
above is applicable such successor trustee or co-trustee shall have entered
into a written agreement with the corporation whereby he assumes the
obligations of the agreement required by said clause (iii); or
(vii) the corporation for the purpose of retirement pursuant to the
provisions of subsection 3.3;
and if the certificate for such shares of Class B Stock when presented for
transfer shall also be accompanied
(a) in the case of a transfer to a transferee as trustee of a trust
which meets the requirements set forth in clause (iii) above, by copies,
duly certified by such trustee, of the instrument creating such trust and
of all amendments thereto, and by an original counterpart or certified copy
of any agreement required by said clause (iii), or
(b) in the case of a transfer to a corporate holder as defined in
clause (iv) above, by a copy, duly certified by the Secretary or an
Assistant Secretary of such corporate holder, of the list of its
stockholders and their respective holdings as shown on its stock books at
the time at which the certificate for shares of Class B Stock is presented
for transfer, and by an original counterpart or certified copy of the
agreement referred to in said clause (iv), or
7
<PAGE> 13
ARTICLE FOURTH, SECTION 2
(c) in the case of a transfer to a legatee described in clause (v)
above, by a copy of the will of the deceased stockholder, duly certified by
the clerk of the court in which the same shall have been probated, or
(d) in the case of a transfer to a transferee as successor trustee or
co-trustee as permitted by clause (vi) above, by an original counterpart or
certified copy of any agreement of such transferee required by said clause
(vi).
From and after the time when the total number of outstanding shares of
Class B Stock shall first fall below 33,749,932, shares of Class B Stock shall
be transferable to any person without regard to the foregoing provisions of this
subsection 2.2.
2.3. CONVERSION OF CLASS B STOCK FOR THE PURPOSE OF SALE OR OTHER
DISPOSITION. A record holder of shares of Class B Stock shall be entitled at any
time and from time to time to convert any or all of such shares held by him into
the same number of shares of Common Stock in the manner set forth in subsection
3.1, for the purpose of effecting the sale or other disposition of such shares
of Common Stock, by surrendering certificates representing the shares of Class B
Stock to be converted, in proper form for transfer of the shares of Common Stock
issuable upon such conversion and accompanied by all stock transfer tax stamps
requisite for such transfer, and also accompanied by a written notice by such
record holder to the corporation stating that such record holder desires to
convert such shares of Class B Stock into the same number of shares of Common
Stock for the purpose of the sale or other disposition of such shares of Common
Stock and requesting that the corporation issue all of such shares of Common
Stock to persons (other than such record holder) named therein, setting forth
the number of shares of Common Stock to be issued to each such person and the
denominations in which the certificates therefor are to be issued. Each such
notice shall be signed by the record holder (or in an appropriate case by his
guardian, committee, executor, administrator or other legal representative).
If a record holder of shares of Class B Stock shall deliver a certificate
for such shares, endorsed by him for transfer or accompanied by an instrument of
transfer signed by him, to a person who does not meet the qualifications set
forth in clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2,
then such person or any successive transferee of such certificate may treat such
endorsement or instrument as authorizing him on behalf of such record holder to
convert such shares in the manner above provided for the purpose of the transfer
to himself of the shares of Common Stock issuable upon such conversion, and to
give on behalf of such record holder the written notice of conversion above
required, and may convert such shares of Class B Stock accordingly.
If such shares of Class B Stock shall improperly have been registered in
the name of such a person (or in the name of any successive transferee of such
certificate) and a new certificate therefor issued, such person or transferee
may surrender such new certificate for cancellation, accompanied by the written
notice of conversion above required, in which case (A) such person or transferee
shall be deemed to have elected to treat the endorsement on (or instrument of
transfer accompanying) the certificate so delivered by such former record holder
as authorizing such person or transferee on behalf of such former record holder
so to convert such shares and so to give such notice, (B) the shares of Class B
Stock registered in the name of such former record holder shall be deemed to
have been surrendered for conversion for the purpose of the transfer to such
person or transferee of the shares of Common Stock issuable upon conversion, and
(C) the appropriate entries shall be made on the books of the corporation to
reflect such action.
2.4. ULTIMATE CONVERTIBILITY OF CLASS B STOCK FOR ANY PURPOSE. From and
after the time when the total number of outstanding shares of Class B Stock
shall first fall below 33,749,932, (i) each record holder of shares of such
stock may convert such shares into an equal number of shares of Common Stock,
irrespective of the purpose of such conversion, by surrendering the certificates
for such shares in the manner set forth in subsection 3.1; and (ii) no
additional shares of
8
<PAGE> 14
ARTICLE FOURTH, SECTION 2
Class B Stock shall be issued by the corporation, and the corporation shall
promptly after such time take such appropriate action as may be necessary to
reduce the authorized amount of Class B Stock to the number of shares then
outstanding.
2.5. LEGEND ON CERTIFICATES FOR CLASS B STOCK. Every certificate for
shares of Class B Stock shall bear a legend on the face thereof reading as
follows:
"The shares of Class B Stock represented by this certificate may not be
transferred to any person who does not meet the qualifications set forth in
clause (i), (ii), (iii), (iv), (v), (vi) or (vii) of subsection 2.2 of
Article FOURTH of the Certificate of Incorporation of this corporation as
amended (Sections 1 to 9 of said Article FOURTH being set forth in full on
the reverse hereof) and no person who does not meet the qualifications
prescribed by subsection 2.1 of said Article FOURTH is entitled to own or
to be registered as the record holder of such shares of Class B Stock,
until the time referred to in said subsection 2.1, but the record holder of
this certificate may at any time convert such shares of Class B Stock into
the same number of shares of Common Stock for the purpose of effecting the
sale or other disposition of such shares of Common Stock to any person.
Each holder of this certificate, by accepting the same, accepts and agrees
to all of the foregoing."
Any certificate for shares of Class B Stock which shall be issued after
the time when the total number of outstanding shares of Class B Stock shall
first fall below 33,749,932 shall not bear such legend.
2.6. VIOLATIONS OF SUBSECTIONS 2.1 AND 2.2. In the event that the Board of
Directors of the corporation (or any committee of the Board of Directors, or any
officer of the corporation, designated for the purpose by the Board of
Directors) shall determine, upon the basis of facts not disclosed in any
affidavit or other document accompanying the certificate for shares of Class B
Stock when presented for transfer, that such shares of Class B Stock have been
registered in violation of the provisions of subsection 2.1 or 2.2, or shall
determine that a person is enjoying for his own benefit the special rights and
powers of shares of Class B Stock in violation of such provisions, then the
corporation shall take such action at law or in equity as is appropriate under
the circumstances. An unforeclosed pledge made to secure a bona fide obligation
shall not be deemed to violate such provisions.
2.7. DEFINITIONS; VERIFICATION OF AFFIDAVITS. For the purposes of this
Section 2, each reference to a "person" shall be deemed to include not only a
natural person, but also a corporation, partnership, association, unincorporated
organization or legal entity of any kind; each reference to a "natural person"
(or to a "record holder" of shares, if a natural person) shall be deemed to
include in his representative capacity a guardian, committee, executor,
administrator or other legal representative of such natural person or record
holder; the term "non-voting preferred stock" as applied to stock in a corporate
holder, shall mean stock which does not entitle the holder thereto to vote for
the election of directors under any circumstances and carries no right to
dividends or interest in earnings other than the right to dividends in a fixed
amount per annum, which right may be cumulative; and the term "exempt
organization" shall mean any corporation, community chest, fund or foundation
organized and operated exclusively for religious, charitable, scientific,
literary, or educational purposes which, at the date of verification of the
affidavit in which reference thereto is made, shall have been exempted or be
exempt, wholly or partially, from taxation on income under the provisions of
Section 501(c)(3) of the Internal Revenue Code of 1986, as then in effect, or
other provision of Federal law then in effect governing the exemption from
Federal taxation on income of institutions organized and operated exclusively
for any one or more of the foregoing purposes. Each affidavit of a record holder
furnished pursuant to subsection 2.2 shall be verified as of a date not earlier
than five days prior to the date of delivery thereof, and, where such record
holder is a corporation or partnership, shall be verified by an officer of the
corporation or by a general partner of the partnership, as the case may be.
9
<PAGE> 15
ARTICLE FOURTH, SECTION 3
SECTION 3.
GENERAL PROVISIONS WITH RESPECT TO CONVERSIONS.
3.1. MANNER OF EFFECTING CONVERSIONS. Each conversion of shares of Class B
Stock into shares of Common Stock made pursuant to the provisions of Section 2
shall be effected by the surrender of the certificate representing the shares to
be converted at the office of the Secretary of the corporation (or at such
additional place or places as may from time to time be designated by the
Secretary or any Assistant Secretary of the corporation) in such form and
accompanied by such notice, affidavits, other documents and stock transfer tax
stamps, if any, as may be prescribed by and shall comply with the applicable
provisions of Section 2, and upon such surrender the record holder of such
shares (or, in the case of a conversion made for the purpose of effecting the
sale, gift or other disposition of the shares of Common Stock issuable upon such
conversion, the person named in the prescribed notice) shall be entitled to
become, and shall be registered in the original stock ledger of the corporation
as, the record holder of the number of shares of Common Stock issuable upon such
conversion, and each such share of Class B Stock shall be converted into one
share of Common Stock, as the Common Stock shall then be constituted, and
thereupon there shall be issued and delivered to such record holder or other
named person, as the case may be, promptly at such office or other designated
place, a certificate or certificates for such number of shares of Common Stock.
3.2. DIVIDENDS. Upon any conversion of shares of Class B Stock into shares
of Common Stock pursuant to the provisions of Section 2, any dividend, for which
the record date shall be subsequent to such conversion, which may have been
declared on the shares of Class B Stock so converted shall be deemed to have
been declared, and shall be payable, with respect to the shares of Common Stock
into or for which such shares of Class B Stock shall have been so converted, and
any such dividend which shall have been declared on such shares payable in
shares of Class B Stock shall be deemed to have been declared, and shall be
payable, in shares of Common Stock.
3.3. PROHIBITION AGAINST REISSUE. The corporation shall not reissue or
resell any shares of Class B Stock which shall have been converted into shares
of Common Stock pursuant to or as permitted by the provisions of Section 2, or
any shares of Class B Stock which shall have been acquired by the corporation in
any other manner. The corporation shall, from time to time, take such
appropriate action as may be necessary to retire such shares and to reduce the
authorized amount of Class B Stock accordingly.
3.4. RESERVATION OF COMMON STOCK. The corporation shall at all times
reserve and keep available, out of its authorized but unissued Common Stock,
such number of shares of Common Stock as would become issuable upon the
conversion of all shares of Class B Stock then outstanding.
3.5. INVESTIGATION OF FACTS. In connection with any transfer or conversion
of any stock of the corporation pursuant to or as permitted by the provisions of
Section 2 of this Article FOURTH, or in connection with the making of any
determination referred to in subsection 2.6,
(i) the corporation shall be under no obligation to make any
investigation of facts unless an officer, employee or agent of the
corporation responsible for making such transfer or determination or
issuing Common Stock pursuant to such conversion has substantial reason to
believe, or unless the Board of Directors (or a committee of the Board of
Directors designated for the purpose) determines that there is substantial
reason to believe, that any affidavit or other document is incomplete or
incorrect in a material respect or that an investigation would disclose
facts upon which any determination referred to in subsection 2.6 should be
made, in either of which events the corporation shall make or cause to be
made such investigation as it may deem necessary or desirable in the
circumstances and have a reasonable time to complete such investigation,
and
(ii) neither the corporation nor any director, officer, employee or
agent of the corporation shall be liable in any manner for any action taken
or omitted in good faith.
10
<PAGE> 16
ARTICLE FOURTH, SECTIONS 4, 5 & 6
SECTION 4.
SUBSCRIPTION RIGHTS.
4.1. SPECIAL RIGHT OF SUBSCRIPTION -- CLASS B STOCK. No shares of Class B
Stock and no obligations or shares convertible into shares of Class B Stock,
whether now or hereafter authorized and whether unissued or in the treasury,
shall be issued, for money paid, property or any other consideration, unless the
holders of Class B Stock shall first have been given a special right to
subscribe thereto, on a ratable basis, at a price not less favorable than that
at which such shares or obligations are to be offered to others.
4.2. OTHER SUBSCRIPTION RIGHTS DENIED. Except for the special subscription
rights conferred on the holders of Class B Stock by the provisions of
subsections 4.1 and 4.3, no holder of stock of the corporation of any class
shall have any pre-emptive or preferential right to subscribe to or purchase any
shares of any class of stock of the corporation, whether now or hereafter
authorized and whether unissued or in the treasury, or any obligations
convertible into shares of any class of stock of the corporation, at any time
issued or sold, or any right to subscribe to or purchase any thereof.
4.3. DISCRETIONARY OFFERING OF COMMON STOCK. If the Board of Directors in
its discretion should at any time offer shares of Common Stock, or any shares or
obligations convertible into shares of Common Stock, for subscription or
purchase by the holders of Common Stock, then there shall be offered to all of
the holders of Class B Stock for subscription or purchase on a ratable basis,
and at the same price per share or unit, shares of stock of that class, or
shares or obligations convertible into shares of stock of that class, as the
case may be; provided, however, that from and after the time when the total
number of outstanding shares of Class B Stock shall first have fallen below
33,749,932, there shall be offered to the holders of the outstanding shares of
such stock for subscription or purchase shares of Common Stock or shares or
obligations convertible into shares of Common Stock, as the case may be, in lieu
of additional shares of Class B Stock or shares or obligations convertible into
shares of Class B Stock, as the case may be.
SECTION 5.
RIGHTS TO DIVIDENDS.
When and as dividends are declared (other than dividends declared with
respect to Preferred Stock), whether payable in cash, in property or in shares
of stock of the corporation (other than shares of Class B Stock or Common
Stock), the holders of Class B Stock and the holders of Common Stock shall be
entitled to share equally, share for share, in such dividends. No dividends
shall be declared or paid in shares of Class B Stock or Common Stock of the
corporation, except dividends, otherwise ratable, payable in shares of Class B
Stock to holders of that class of stock, and in shares of Common Stock to
holders of that class of stock; provided, however, that from and after the time
when the total number of outstanding shares of Class B Stock shall first have
fallen below 33,749,932, any such dividend shall be declared and paid to the
holders of shares of Class B Stock in shares of Common Stock.
SECTION 6.
ADJUSTMENTS.
6.1. INCREASE IN OUTSTANDING STOCK. If the corporation shall in any manner
increase the number of outstanding shares of Class B Stock, then each of the
share numbers set forth in the Table below and appearing in the provision of
this
11
<PAGE> 17
ARTICLE FOURTH, SECTIONS 6 & 7
Article FOURTH set forth in such Table opposite such share number shall be
deemed to be increased by a number bearing the same proportion to such share
number that such increase in the number of outstanding shares of Class B Stock
bears to the number of shares of Class B Stock outstanding immediately prior to
such increase; and in each such case all of such provisions and this subsection
6.1 shall be applied so as to give effect to such share numbers as so increased.
If any such increase shall be effected by amendment of the Certificate of
Incorporation, then such amendment shall itself increase each of the appropriate
share numbers in accordance with the foregoing.
TABLE
<TABLE>
<CAPTION>
PROVISION SHARE
NUMBER
<S> <C>
1.3a..................................................................... 60,749,880
1.3b..................................................................... 60,749,880
1.3b..................................................................... 33,749,932
1.3c..................................................................... 33,749,932
1.7...................................................................... 33,749,932
2.1...................................................................... 33,749,932
2.2(iii)................................................................. 33,749,932
2.2(iv).................................................................. 33,749,932
2.2(v)................................................................... 8,437,480
2.2 (last paragraph)..................................................... 33,749,932
2.4...................................................................... 33,749,932
2.5...................................................................... 33,749,932
4.3...................................................................... 33,749,932
5........................................................................ 33,749,932
</TABLE>
6.2. CONSOLIDATION OR COMBINATION OF SHARES. If the corporation shall
effect the consolidation or combination of all outstanding shares of Class B
Stock by amendment of the Certificate of Incorporation, so as to reduce the
number of outstanding shares thereof, then such amendment shall also decrease
each of the share numbers set forth in the Table in subsection 6.1 and appearing
in the provision of this Article FOURTH set forth in such Table opposite such
share number, by a number bearing the same proportion to such share number that
the decrease in the number of outstanding shares of stock of such class effected
by such consolidation or combination bears to the number of shares of stock of
such class outstanding immediately prior to the effective date of such
consolidation or combination.
SECTION 7.
ALL SHARES OTHERWISE EQUAL.
Except as herein otherwise expressly provided, shares of Class B Stock and
Common Stock shall all be of equal rank and shall all entitle the holders
thereof to the same rights and privileges.
12
<PAGE> 18
ARTICLE FOURTH, SECTION 8
SECTION 8.
PREFERRED STOCK.
8.1. PREFERRED STOCK. Shares of Preferred Stock may be issued from time to
time in one or more series. Subject to the limitations set forth in this Article
FOURTH and any limitations prescribed by the law of the State of Delaware, the
Board of Directors is expressly authorized, prior to issuance of any series of
Preferred Stock, to fix by resolution or resolutions providing for the issue of
any series the number of shares included in such series and the designation,
relative powers, preferences and rights, and the qualifications, limitations or
restrictions of such series. Pursuant to the foregoing general authority vested
in the Board of Directors, but (except as provided in the proviso to clause (v)
of this subsection 8.1) not in limitation of the powers conferred on the Board
of Directors thereby and by the law of the State of Delaware, the Board of
Directors is expressly authorized to determine with respect to each series of
Preferred Stock:
(i) the distinctive designation of such series and the number of shares
(which number from time to time may be decreased by the Board of Directors,
but not below the number of such shares then outstanding, or may be
increased by the Board of Directors unless otherwise provided in creating
such series) constituting such series;
(ii) the rate and time at which, and the preferences and conditions
under which, dividends shall be payable on shares of such series, the
status of such dividends as cumulative, or non-cumulative, the date or
dates from which dividends, if cumulative, shall accumulate, and the status
of such shares as participating or non-participating after the payment of
dividends as to which such shares are entitled to any preference;
(iii) the right, if any, of holders of shares of such series to convert
such shares into, or to exchange such shares for, shares of any other class
or classes (other than Class B) or of any other series of the same class,
the prices or rates of conversion or exchange, and adjustments thereto, and
any other terms and conditions applicable to such conversion or exchange;
(iv) the rights and preferences, if any, of the holders of shares of
such series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the corporation, which
amount may vary depending upon whether such liquidation, dissolution, or
winding up is voluntary or involuntary, and, if voluntary, may vary at
different dates, and the status of the shares of such series as
participating or non-participating after the satisfaction of any such
rights and preferences;
(v) the voting powers, if any, of the holders of shares of such series
which may, without limiting the generality of the foregoing, include (A)
the general right to one vote (or more or less than one vote) per share on
every matter (including, without limitation, the election of directors)
voted on by the stockholders without regard to class and (B) the limited
right to vote, as a series by itself or together with other series of
Preferred Stock or together with all series of Preferred Stock as a class,
upon such matters, under such circumstances and upon such conditions as the
Board of Directors may fix, including, without limitation, the right,
voting as a series by itself or together with other series of Preferred
Stock or together with all series of Preferred Stock as a class, to elect
one or more directors of the corporation in the event there shall have been
a default in the payment of dividends on any one or more series of
Preferred Stock; provided, however, that, notwithstanding the provisions of
the preceding subclause (B) or any other provisions of this subsection 8.1
to the contrary, the holders of Preferred Stock, considered in the
aggregate (whether voting by individual series or together with other
series of Preferred Stock or together with all series of Preferred Stock as
a class), shall not have the right to a separate class vote for the
election of one or more directors of the corporation except in the event
there shall have been a default in the payment of dividends on any one or
13
<PAGE> 19
ARTICLE FOURTH, SECTIONS 8 & 9
more series of Preferred Stock and, in such event, shall not have the
right to a separate class vote for more than a total of two directors;
(vi) the times, terms and conditions, if any, upon which shares of such
series shall be subject to redemption, including the amount which the
holders of shares of such series shall be entitled to receive upon
redemption (which amount may vary under different conditions or at
different redemption dates) and the amount, terms, conditions and manner of
operation of any purchase, retirement or sinking fund to be provided for
the shares of such series;
(vii) the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of distributions on, or
the acquisition or redemption of, Common Stock or Class B Stock or any
other class of shares ranking junior, either as to dividends or upon
liquidation, to the shares of such series;
(viii) the conditions or restrictions, if any, upon the issue of any
additional shares (including additional shares of such series or any other
class) ranking on a parity with or prior to the shares of such series
either as to dividends or upon liquidation; and
(ix) any other relative powers, preferences and participating, optional
or other special rights, and the qualifications, limitations or
restrictions thereof, of shares of such series;
in each case, so far as not inconsistent with the provisions of the
Certificate of Incorporation or the law of the State of Delaware. All
shares of Preferred Stock shall be identical and of equal rank except as to
the particulars that may be fixed by the Board of Directors as provided
above, and all shares of each series of Preferred Stock shall be identical
and of equal rank except as to the dates from which cumulative dividends,
if any, thereon shall be cumulative.
8.2. FULL VOTING PREFERRED STOCK. As used in this Article FOURTH, the term
"Full Voting Preferred Stock" shall mean Preferred Stock of any one or more
series the holders of which shall be entitled to vote on every matter
(including, without limitation, the election of directors) voted on by the
stockholders without regard to class.
SECTION 9.
MISCELLANEOUS PROVISIONS.
9.1. ORIGINAL STOCK LEDGER CONCLUSIVE. In determining the number or the
record holders of outstanding shares of any class of stock of the corporation
for the purpose of computing or determining the method of computing the vote or
determining the right to vote at any meeting of stockholders or of a class of
stockholders, the original stock ledger of the corporation as at the close of
business on the record date fixed for such meeting or, if the stock transfer
books of the corporation shall have been closed for a period immediately
preceding the date of such meeting, then as at the close of business on the date
as of which such stock transfer books were so closed, shall be conclusive for
all purposes, and in determining the number or the record holders of outstanding
shares of any class of stock of the corporation for any other purpose, the
original stock ledger of the corporation as at the close of business on the date
as of which the determination is being made, shall be conclusive for all
purposes; all notwithstanding any other provision of this Article FOURTH or any
entries made on the books of the corporation pursuant to the last paragraph of
subsection 2.3 subsequent to the close of business on such record or other date.
14
<PAGE> 20
ARTICLE FOURTH, SECTIONS 9 & 10
9.2. TREASURY STOCK NOT OUTSTANDING. The term "outstanding" as used in
this Article FOURTH with reference to shares of stock of the corporation shall
not include any stock held in the treasury of the corporation.
9.3. SINGULAR AND PLURAL. Wherever a term shall be used in the singular in
this Article FOURTH, it shall be deemed in all appropriate circumstances to
include also the plural, and wherever a term shall be so used in the plural, it
shall similarly be deemed to include also the singular.
9.4. REFERENCES. Unless otherwise stated, all references contained in this
Article FOURTH to Sections, subsections, paragraphs, clauses or subclauses refer
to Sections, subsections, paragraphs, clauses or subclauses of this Article
FOURTH.
9.5. CAPTIONS OR HEADINGS. The captions or headings contained in this
Article FOURTH are for purposes of reference only and shall not limit or affect,
or have any bearing on the construction or interpretation of, any of the terms
or provisions of this Article FOURTH.
SECTION 10.
SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK.
The provisions of the corporation's Certificate of the Designations,
Powers, Preferences and Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions Thereof, of the Series A Cumulative
Convertible Preferred Stock are set forth below:
(1) NUMBER OF SHARES AND DESIGNATION. Forty-six thousand shares of the
preferred stock, $1.00 par value, of the corporation are hereby constituted as a
series of the preferred stock designated as Series A Cumulative Convertible
Preferred Stock (the "Series A Preferred Stock").
(2) DEFINITIONS. For purposes of the Series A Preferred Stock, the
following terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series A Preferred
Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
"Class B Stock" shall mean the Class B Stock of the corporation, par
value $1.00 per share.
"Common Stock" shall mean the Common Stock of the corporation, par
value $1.00 per share.
"Conversion Price" shall mean the conversion price per share of Common
Stock for which the Series A Preferred Stock is convertible, as such
Conversion Price may be adjusted pursuant to Section (7). The initial
Conversion Price will be $30.625 (equivalent to the rate of 1,632.7 shares
of Common Stock for each share of Series A Preferred Stock).
15
<PAGE> 21
ARTICLE FOURTH, SECTION 10
"Current Market Price" shall mean, as of a particular date, the closing
sale price at which Common Stock shall have been sold regular way on the
New York Stock Exchange.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and
ending on and including the day preceding the first day of the next
succeeding Dividend Period (other than the initial Dividend Period which
shall commence on the Issue Date and end on and include February 29, 1992).
"Issue Date" shall mean the first date on which shares of Series A
Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Securities" shall have the meaning set forth in paragraph (d)(iii) of
Section (7) hereof.
"Trading Day" means a day on which the New York Stock Exchange is open
for the transaction of business.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section (7) hereof.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the corporation as may be designated by the Board of Directors of the
corporation as the transfer agent for the Series A Preferred Stock.
(3) DIVIDENDS. (a) The holders of shares of the Series A Preferred Stock
shall be entitled to receive, when and if declared by the Board of Directors out
of funds legally available therefor, cash dividends at the rate per annum of
$4,200 per share of Series A Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or Periods there
shall be funds of the corporation legally available for the payment of such
dividends, and shall be payable quarterly, when and as declared by the Board of
Directors, on the first Business Day of March, June, September and December of
each year, commencing on March 2, 1992 or at such additional times and for such
interim periods, if any, as determined by the Board of Directors. Each such
dividend shall be payable in arrears to the holders of record of shares of the
Series A Preferred Stock, as they appear on the stock records of the corporation
at the close of business on such record dates, not more than 60 days preceding
the payment dates thereof, as shall be fixed by the Board of Directors. Accrued
and unpaid dividends for any past Dividend Periods may be declared and paid at
any time, without reference to any regular dividend payment date, to holders of
record on such date, not exceeding 45 days preceding the payment date thereof,
as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Series A Preferred Stock shall be computed by dividing the annual dividend rate
by four. The amount of dividends payable for the initial Dividend Period on the
Series A Preferred Stock, or any other period shorter or longer than a full
Dividend Period on the Series A Preferred Stock shall be computed on the basis
of twelve 30-day months and a 360-day year. Holders of shares of Series A
Preferred Stock called for redemption on a redemption date between a dividend
payment record date and the dividend payment date shall not be entitled to
receive the dividend payable on such dividend payment date. Holders of shares of
Series A Preferred Stock shall not be entitled to any dividends, whether payable
in cash, property or stock, in excess of cumulative dividends, as herein
provided, on the Series A Preferred Stock. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment or payments on
the Series A Preferred Stock which may be in arrears.
(c) So long as any shares of the Series A Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
16
<PAGE> 22
ARTICLE FOURTH, SECTION 10
corporation ranking, as to dividends, on a parity with the Series A Preferred
Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series A Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, upon the shares of the Series A
Preferred Stock and any other class or series of stock ranking on a parity as to
dividends with the Series A Preferred Stock, all dividends declared upon shares
of the Series A Preferred Stock and all dividends declared upon such other stock
shall be declared pro rata so that the amounts of dividends per share declared
on the Series A Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Series A Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series A Preferred Stock are outstanding,
no dividends (other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of Common Stock,
Class B Stock or other stock ranking junior to the Series A Preferred Stock, as
to dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock, Class B
Stock or any other stock of the corporation ranking junior to the Series A
Preferred Stock, as to dividends or upon liquidation nor shall any Common Stock,
nor any Class B Stock nor any other such stock of the corporation ranking junior
to the Series A Preferred Stock, as to dividends or upon liquidation be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
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 the Series A Preferred Stock, as to
dividends and upon liquidation) unless, in each case (i) the full cumulative
dividends on all outstanding shares of the Series A Preferred Stock and any
other stock of the corporation ranking on a parity with the Series A Preferred
Stock, as to dividends or upon liquidation shall have been paid or set apart for
payment for all past Dividend Periods and dividend periods with respect to such
other stock and (ii) sufficient funds shall have been set apart for the payment
of the dividend for the current Dividend Period with respect to the Series A
Preferred Stock and the dividend period with respect to any other stock of the
corporation ranking on a parity with the Series A Preferred Stock, as to
dividends or upon liquidation.
(4) LIQUIDATION PREFERENCE. (a) In the event of any liquidation,
dissolution or winding up of the corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the corporation (whether
capital or surplus) shall be made to or set apart for the holders of Common
Stock, Class B Stock or any other series or class or classes of stock of the
corporation ranking junior to the Series A Preferred Stock, upon liquidation,
dissolution or winding up, the holders of the shares of Series A Preferred Stock
shall be entitled to receive $50,000 per share plus an amount equal to all
dividends (whether or not earned or declared) accrued and accumulated and unpaid
thereon to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the corporation, the assets of the corporation, or
proceeds thereof, distributable among the holders of the shares of Series A
Preferred Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares of stock ranking, as to
liquidation, dissolution or winding up, on a parity with the Series A Preferred
Stock, then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Series A Preferred Stock and any such other stock ratably
in accordance with the respective amounts which would be payable on such shares
of Series A Preferred Stock and any such other stock if all amounts payable
thereon were paid in full. For the purposes of this Section (4), (i) a
consolidation or merger of the corporation with one or more corporations, (ii) a
sale or transfer of all or substantially all of the corporation's assets or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or class
or classes of stock ranking on a parity with or prior to Series A Preferred
Stock, upon liquidation, dissolution or winding up, upon any liquidation,
dissolution or winding up of the corporation, after payment shall have been made
in full to the holders of Series A Preferred Stock, as provided in
17
<PAGE> 23
ARTICLE FOURTH, SECTION 10
this Section (4), any other series or class or classes of stock ranking junior
to Series A Preferred Stock, upon liquidation, dissolution or winding up shall,
subject to the respective terms and provisions (if any) applying thereto, be
entitled to receive any and all assets remaining to be paid or distributed, and
the holders of Series A Preferred Stock shall not be entitled to share therein.
(5) REDEMPTION AT THE OPTION OF THE CORPORATION. (a) Series A Preferred
Stock may not be redeemed by the corporation prior to December 7, 1997, after
which the corporation, at its option, may redeem the shares of Series A
Preferred Stock, in whole or in part, out of funds legally available therefor,
at any time or from time to time, subject to the notice provisions and
provisions for partial redemption described below, during the 359-day period
beginning on December 7, 1997 and during the twelve-month periods beginning on
December 1 of the years beginning with 1998 shown below at the following
redemption prices plus an amount equal to accrued and unpaid dividends, if any,
to the date fixed for redemption, whether or not earned or declared.
<TABLE>
<CAPTION>
YEAR PRICE
<S> <C>
1997................................................................ $51,680
1998................................................................ $51,260
1999................................................................ $50,840
2000................................................................ $50,420
2001 and thereafter................................................. $50,000
</TABLE>
(b) In the event that full cumulative dividends on the Series A Preferred
Stock and any other class or series of stock of the corporation ranking, as to
dividends, on a parity with the Series A Preferred Stock have not been paid or
declared and set apart for payment, the Series A Preferred Stock may not be
redeemed in part and the corporation may not purchase or acquire shares of
Series A Preferred Stock or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series A Preferred Stock and such other stock.
(c) In the event the corporation shall redeem shares of Series A Preferred
Stock, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the corporation. Each such
notice shall state: (1) the redemption date; (2) the number of shares of Series
A Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; (5) the
then current conversion price; and (6) that dividends on the shares to be
redeemed shall cease to accrue on such redemption date. Notice having been
mailed as aforesaid, from and after the redemption date (unless default shall be
made by the corporation in providing money for the payment of the redemption
price), (i) dividends on the shares of the Series A Preferred Stock so called
for redemption shall cease to accrue, (ii) said shares shall no longer be deemed
to be outstanding, and (iii) all rights of the holders thereof as stockholders
of the corporation (except the right to receive from the corporation the
redemption price without interest thereon) shall cease. The corporation's
obligation to provide moneys in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the redemption date, the corporation shall
deposit with a bank or trust company (which may be an affiliate of the
corporation) having an office in the Borough of Manhattan, City of New York, and
having a capital and surplus of at least $50,000,000, funds necessary for such
redemption, in trust, with irrevocable instructions that such funds be applied
to the redemption of the shares of Series A Preferred Stock so called for
redemption. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so deposited and unclaimed at the end of two years
from such redemption date shall be released or repaid to the corporation, after
which, subject to any applicable laws relating to escheat or unclaimed property,
the holder or holders of such shares of Series A Preferred Stock so called for
redemption shall look only to the corporation for payment of the redemption
price.
18
<PAGE> 24
ARTICLE FOURTH, SECTION 10
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series A Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by the corporation
from outstanding shares of Series A Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) SHARES TO BE RETIRED. All shares of Series A Preferred Stock purchased
or redeemed by the corporation or converted shall be retired and canceled and
shall be restored to the status of authorized but unissued shares of preferred
stock, without designation as to series.
(7) CONVERSION. Holders of shares of Series A Preferred Stock shall have
the right to convert all or a portion of such shares into shares of Common
Stock, as follows:
(a) Subject to and upon compliance with the provisions of this Section
(7), a holder of shares of Series A Preferred Stock shall have the right, at his
or her option, at any time to convert such shares into the number of fully paid
and nonassessable shares of Common Stock (calculated as to each conversion to
the nearest 1/100th of a share) obtained by dividing the aggregate liquidation
preference of such shares by the Conversion Price and by surrender of such
shares so to be converted, such surrender to be made in the manner provided in
paragraph (b) of this Section (7); provided, however, that the right to convert
shares called for redemption pursuant to Section (5) shall terminate at the
close of business on the date fixed for such redemption, unless the corporation
shall default in making payment of the amount payable upon such redemption. Any
share of Series A Preferred Stock may be converted, at the request of its
holder, in part into Common Stock. If a part of a share of Series A Preferred
Stock is converted, then the corporation will convert such share into the
requested shares of Common Stock (subject to paragraph (c) of this Section (7))
and issue a fractional share of Series A Preferred Stock evidencing the
remaining interest of such holder.
(b) In order to exercise the conversion right, the holder of each share of
Series A Preferred Stock to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the corporation or in
blank, at the office of the Transfer Agent in the Borough of Manhattan, City of
New York, accompanied by written notice to the corporation that the holder
thereof elects to convert Series A Preferred Stock or a specified portion
thereof. Unless the shares issuable on conversion are to be issued in the same
name as the name in which such share of Series A Preferred Stock is registered,
each share surrendered for conversion shall be accompanied by instruments of
transfer, in form satisfactory to the corporation, duly executed by the holder
or such holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the corporation
demonstrating that such taxes have been paid).
Holders of shares of Series A Preferred Stock at the close of business on
a dividend payment record date shall be entitled to receive the dividend payable
on such shares (except that holders of shares called for redemption on a
redemption date between such record date and the dividend payment date shall not
be entitled to receive such dividend on such dividend payment date) on the
corresponding dividend payment date notwithstanding the conversion thereof
following such dividend payment record date and prior to such dividend payment
date. However, shares of Series A Preferred Stock surrendered for conversion
during the period between the close of business on any dividend record date and
the opening of business on the corresponding dividend payment date (except
shares called for redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the dividend payable on such shares
on such dividend payment date. A holder of shares of Series A Preferred Stock on
a dividend record date who
19
<PAGE> 25
ARTICLE FOURTH, SECTION 10
(or whose transferee) tenders any such shares for conversion into shares of
Common Stock on such dividend payment date will receive the dividend payable by
the corporation on such shares of Series A Preferred Stock on such date, and the
converting holder need not include payment of the amount of such dividend upon
surrender of shares of Series A Preferred Stock for conversion. Except as
provided above, the corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the shares of Common Stock issued upon such conversion.
As promptly as practicable after the surrender of certificates for shares
of Series A Preferred Stock as aforesaid, the corporation shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with the provisions of
this Section (7), and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided in paragraph (c)
of this Section (7).
Each conversion shall be deemed to have been effected immediately prior to
the close of business on the date on which the certificates for shares of Series
A Preferred Stock shall have been surrendered and such notice received by the
corporation as aforesaid, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares represented thereby at such time on such date and such conversion
shall be at the Conversion Price in effect at such time on such date, unless the
stock transfer books of the corporation shall be closed on that date, in which
event such person or persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on which
such stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such shares shall have been
surrendered and such notice received by the corporation. All shares of Common
Stock delivered upon conversions of the Series A Preferred Stock will upon
delivery be duly and validly issued and fully paid and nonassessable.
(c) No fractional shares or scrip representing fractions of shares of
Common Stock shall be issued upon conversion of the Series A Preferred Stock.
Instead of any fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of Series A Preferred
Stock, the corporation shall pay to the holder of such share an amount in cash
(computed to the nearest cent) based upon the Current Market Price of Common
Stock on the Trading Day immediately preceding the date of conversion. If more
than one share shall be surrendered for conversion at one time by the same
holder, the number of full shares of Common Stock issuable upon conversion
thereof shall be computed on the basis of the aggregate number of shares of
Series A Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) In case the corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Stock in shares of its Common
Stock, (B) subdivide its outstanding Common Stock into a greater number of
shares, (C) combine its outstanding Common Stock into a smaller number of
shares or (D) issue any shares of capital stock by reclassification of its
Common Stock, the Conversion Price in effect immediately prior thereto
shall be adjusted so that the holder of any share of Series A Preferred
Stock thereafter surrendered for conversion shall be entitled to receive
the number of shares of Common Stock of the corporation which such holder
would have owned or have been entitled to receive after the happening of
any of the events described above had such share been converted immediately
prior to the happening of such event or the record date therefor, whichever
is earlier. An adjustment made pursuant to this subparagraph (i) shall
become effective immediately after the close of business on the record date
in the case of a dividend or distribution (except as provided in paragraph
(h) below) and shall become effective immediately after the close of
business on the record date in the case of a subdivision, combination or
reclassification.
20
<PAGE> 26
ARTICLE FOURTH, SECTION 10
(ii) In case the corporation shall issue after the Issue Date (a)
rights or warrants to all holders of Common Stock entitling them (for a
period expiring within 45 days after the record date mentioned below) to
subscribe for or purchase Common Stock at a price per share less than the
Current Market Price per share of Common Stock at the record date for the
determination of shareholders entitled to receive such rights or warrants
or (b) shares of Common Stock or securities exercisable for (including
rights or warrants other than those referred to in (a) above and
subparagraph (iii) below) or exchangeable or convertible into shares of
Common Stock at a price per share (or having an exercise, exchange or
conversion price per share) less than the then Current Market Price per
share of Common Stock, then in each such case the Conversion Price in
effect immediately prior thereto shall be adjusted to equal the price
determined by multiplying (I) the Conversion Price in effect immediately
prior to the date of issuance of such rights, warrants or shares of Common
Stock (or securities exercisable for or exchangeable or convertible into
shares of Common Stock) by (II) a fraction, the numerator of which shall be
the sum of (A) the number of shares of Common Stock outstanding on the date
of issuance of such rights, warrants or shares of Common Stock (or
securities exercisable for or exchangeable or convertible into shares of
Common Stock) (without giving effect to any such issuance) and (B), in the
case of (a) above, the number of shares which the aggregate proceeds from
the exercise of such rights or warrants for Common Stock or, in the case of
(b) above, the number of shares which the aggregate consideration
receivable by the corporation for the total number of shares of Common
Stock (or securities exercisable for or exchangeable or convertible into
shares of Common Stock) so issued would purchase at such Current Market
Price, and the denominator of which shall be the sum of (A) the number of
shares of Common Stock outstanding on the date of issuance of such rights,
warrants or shares of Common Stock (or securities exercisable for or
exchangeable or convertible into Common Stock) (without giving effect to
any such issuance) and (B), in the case of (a) above, the number of
additional shares of Common Stock offered for subscription or purchase or,
in the case of (b) above, the number of shares of Common Stock so issued or
into which the exercisable, exchangeable or convertible securities may be
exercised, exchanged or converted. Such adjustment shall be made
successively whenever any such rights, warrants or shares of Common Stock
(or securities exercisable for or exchangeable or convertible into Common
Stock) are issued, and shall become effective immediately after such record
date or, in the case of the issuance of Common Stock after the date of
issuance thereof (or in the case of securities exercisable for or
exchangeable or convertible into shares of Common Stock, the date on which
holders may first exercise, exchange or convert the same in accordance with
the respective terms thereof). In determining whether any rights or
warrants entitle the holders of Common Stock to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, and in
determining the aggregate offering price of shares of Common Stock (or
securities exercisable for or exchangeable or convertible into shares of
Common Stock), there shall be taken into account any consideration received
by the corporation upon issuance and upon exercise of such rights or
warrants or upon issuance of shares of Common Stock (or securities
exercisable for or exchangeable or convertible into shares of Common
Stock), the value of such consideration, if other than cash, to be
determined by the Board of Directors or, if higher, the aggregate exercise,
exchange or conversion price set forth in such exercisable, exchangeable or
convertible securities. The foregoing notwithstanding, no adjustment shall
be made pursuant to this subparagraph (ii) as a result of the issuance or
sale of shares of Common Stock by the corporation at a cash price (without
deducting from such consideration any commissions, fees or expenses payable
in connection therewith) not less than ninety-nine percent of the Current
Market Price of the Common Stock on the Trading Day immediately preceding
the date of a binding contract with respect to such sale or, if no such
contract has been entered into, the last Current Market Price of Common
Stock (determined as aforesaid) on the Trading Day immediately preceding
the date of the issuance of such Common Stock.
(iii) In case the corporation shall distribute to all holders of its
Common Stock any shares of capital stock of the corporation (other than
Common Stock) or evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from profits or surplus of the corporation)
or rights or warrants to subscribe for or purchase any of its securities
(excluding those referred to in subparagraph (ii)(a) above) (any of the
foregoing being hereinafter in
21
<PAGE> 27
ARTICLE FOURTH, SECTION 10
this subparagraph (iii) called the "Securities"), then in each such case,
unless the corporation elects to reserve shares or other units of such
Securities for distribution to the holders of the Series A Preferred Stock
upon the conversion of the shares of Series A Preferred Stock so that any
such holder converting shares of Series A Preferred Stock will receive
upon such conversion, in addition to the shares of the Common Stock to
which such holder is entitled, the amount and kind of such Securities
which such holder would have received if such holder had, immediately
prior to the record date for the distribution of the Securities, converted
his or her shares of Series A Preferred Stock into Common Stock (such
election to be based upon a determination by the Board of Directors that
such reservation will not materially adversely affect the interests of any
holder of Series A Preferred Stock in any such reserved Securities), the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying (I) the Conversion Price in effect immediately
prior to the date of such distribution by (II) a fraction, the numerator
of which shall be the Current Market Price per share of the Common Stock
on the record date mentioned below less the then fair market value (as
determined by the Board of Directors, whose determination shall, if made
in good faith, be conclusive) of the portion of the capital stock or
assets or evidences of indebtedness so distributed or of such rights or
warrants applicable to one share of Common Stock, and the denominator of
which shall be the Current Market Price per share of the Common Stock.
Such adjustment shall become effective immediately, except as provided in
paragraph (h) below, after the record date for the determination of
shareholders entitled to receive such distribution.
(iv) Notwithstanding anything in subparagraphs (ii) and (iii) above, if
such exercisable, exchangeable or convertible securities, rights or
warrants shall by their terms provide for an increase or increases with the
passage of time or otherwise in the price payable to the corporation upon
the exercise thereof, the Conversion Price upon any such increase becoming
effective shall forthwith be readjusted (but to no greater extent than
originally adjusted by reason of such issuance or sale) to reflect the
same. Upon the expiration or termination of such rights or warrants, if any
such rights or warrants shall not have been exercised, and upon the
expiration or termination of the exercise, exchange or conversion rights
under such exercisable, exchangeable or convertible securities, if any such
exercisable, exchangeable or convertible securities shall not have been
exercised, exchanged or converted, then the Conversion Price thereof shall
forthwith be readjusted and thereafter be the rate which it would have been
had an adjustment been made on the basis that (x) the only rights or
warrants so issued or sold were those so exercised and they were issued or
sold for the consideration actually received by the corporation upon such
exercise, plus the consideration, if any, actually received by the
corporation upon such exercise, plus the consideration, if any, actually
received by the corporation for the granting of all such options, rights or
warrants whether or not exercised and (y) the corporation issued and sold a
number of shares of Common Stock equal to those actually issued upon
exercise of such exercise, exchange or conversion rights, and such shares
were issued and sold for a consideration equal to the aggregate exercise,
exchange or conversion price in effect under the exercise, exchange or
conversion rights actually exercised at the respective dates of their
exercise. An adjustment made pursuant to this subparagraph (iv) shall be
made on the next Business Day following the date on which any such issuance
is made and shall be effective immediately after the close of business on
such date. For purposes of subparagraphs (ii) and (iv), the aggregate
consideration received by the corporation in connection with the issuance
of shares of Common Stock or of rights, warrants or securities exercisable
for or exchangeable or convertible into shares of Common Stock shall be
deemed to be equal to the sum of the aggregate offering price (before
deduction of underwriting discounts or commissions and expenses payable to
third parties) of all such securities plus the minimum aggregate amount, if
any, payable upon exercise of such rights or warrants and conversion of any
such exercisable, exchangeable or convertible securities into shares of
Common Stock.
(v) No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this
subparagraph (v) are not required to be made shall be carried forward and
taken into account in any subsequent
22
<PAGE> 28
ARTICLE FOURTH, SECTION 10
adjustment; and provided, further, any adjustment shall be required and
made in accordance with the provisions of this Section (7) (other than
this subparagraph (v)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution to the holders of
shares of Common Stock. All calculations under this Section (7) shall be
made to the nearest cent (with $.005 being rounded upward) or to the
nearest 1/100 of a share (with .005 of a share being rounded upward), as
the case may be. Anything in this paragraph (d) to the contrary
notwithstanding, the corporation shall be entitled, to the extent
permitted by law, to make such reductions in the Conversion Price, in
addition to those required by this paragraph (d), as it in its discretion
shall determine to be advisable in order that any stock dividends,
subdivision of shares, distribution of rights or warrants to purchase
stock or securities, or a distribution of other assets (other than cash
dividends) hereafter made by the corporation to its stockholders shall not
be taxable.
(e) In case the corporation shall be a party to any transaction (including
without limitation a merger, consolidation, sale of all or substantially all of
the corporation's assets or recapitalization of the Common Stock and excluding
any transaction as to which paragraph (d)(i) of this Section (7) applies) (each
of the foregoing being referred to as a "Transaction"), in each case as a result
of which shares of Common Stock shall be converted into the right to receive
stock, securities or other property (including cash or any combination thereof),
each share of Series A Preferred Stock which is not converted into the right to
receive stock, securities or other property in connection with such Transaction
shall thereafter be convertible into the kind and amount of shares of stock and
other securities and property receivable (including cash) upon the consummation
of such Transaction by a holder of that number of shares or fraction thereof of
Common Stock into which one share of Series A Preferred Stock was convertible
immediately prior to such Transaction. The corporation shall not be a party to
any Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e) and it shall not consent or agree to the
occurrence of any Transaction until the corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series A Preferred Stock which will contain
provisions enabling the holders of the Series A Preferred Stock which remains
outstanding after such Transaction to convert into the consideration received by
holders of Common Stock at the Conversion Price immediately after such
Transaction. The provisions of this paragraph (e) shall similarly apply to
successive Transactions.
(f) If:
(i) the corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of profits or
surplus); or
(ii) the corporation shall authorize the granting to the holders of the
Common Stock of rights or warrants to subscribe for or purchase any shares
of any class or any other rights or warrants;
(iii) there shall be any reclassification of the Common Stock (other
than an event to which paragraph (d)(i) of this Section (7) applies) or any
consolidation or merger to which the corporation is a party and for which
approval of any stockholders of the corporation is required, or the sale or
transfer of all or substantially all of the assets of the corporation,
then the corporation shall cause to be filed with the Transfer Agent and shall
cause to be mailed to the holders of shares of the Series A Preferred Stock at
their addresses as shown on the stock records of the corporation, as promptly as
possible, but at least 15 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution or rights or warrants are
to be determined or (B) the date on which such reclassification, consolidation,
merger, sale or transfer is expected, that holders
23
<PAGE> 29
ARTICLE FOURTH, SECTION 10
of Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale or transfer. Failure to give such notice or any
defect therein shall not affect the legality or validity of the proceedings
described in this Section (7).
(g) Whenever the Conversion Price is adjusted as herein provided, the
corporation shall promptly file with the Transfer Agent an officers' certificate
setting forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Promptly after delivery
of such certificate, the corporation shall prepare a notice of such adjustment
of the Conversion Price setting forth the adjusted Conversion Price and the date
on which such adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series A
Preferred Stock at his or her last address as shown on the stock records of the
corporation.
(h) In any case in which paragraph (d) of this Section (7) provides that
an adjustment shall become effective immediately after a record date for an
event, the corporation may defer until the occurrence of such event (A) issuing
to the holder of any share of Series A Preferred Stock converted after such
record date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment required
by such event over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (B) paying to such holder any amount
in cash in lieu of any fraction pursuant to paragraph (c) of this Section (7).
(i) For purposes of this Section (7), the number of shares of Common Stock
at any time outstanding shall not include any shares of Common Stock then owned
or held by or for the account of the corporation.
(j) Notwithstanding any other provision herein to the contrary, the
issuance of any shares of Common Stock pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the corporation
and the investment of additional optional amounts in shares of Common Stock
under any such plan, and the issuance of any shares of Common Stock or options
or rights to purchase such shares pursuant to any employee benefit plan or
program of the corporation or pursuant to any option, warrant, right or
exercisable, exchangeable or convertible security (including, but not limited
to, Class B Stock) outstanding as of the date the Series A Preferred Stock was
first designated, shall not be deemed to constitute an issuance of Common Stock
or exercisable, exchangeable or convertible securities by the corporation to
which this Section (7) applies. There shall be no adjustment of the Conversion
Price in case of the issuance of any stock of the corporation in a
reorganization, acquisition or other similar transaction except as specifically
set forth in this Section (7). If any action or transaction would require
adjustment of the Conversion Price pursuant to more than one paragraph of this
Section (7), only one adjustment shall be made and such adjustment shall be the
amount of adjustment which has the highest absolute value.
(k) In case the corporation shall take any action affecting the Common
Stock, other than action described in this Section (7), which in the opinion of
the Board of Directors would materially adversely affect the conversion rights
of the holders of the shares of Series A Preferred Stock, the Conversion Price
for the Series A Preferred Stock may be adjusted, to the extent permitted by
law, in such manner, if any, and at such time, as the Board of Directors may
determine to be equitable in the circumstances.
(l) The corporation covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Common Stock or its issued shares of Common Stock held in
its treasury, or both, for the purpose of effecting conversion of the Series A
Preferred Stock, the full number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of Series A Preferred Stock not theretofore
converted. For purposes of this paragraph (l), the number of shares of Common
Stock which shall be deliverable upon the conversion of all outstanding shares
of Series A Preferred Stock shall be computed as if at the time of computation
all such outstanding shares were held by a single holder.
24
<PAGE> 30
ARTICLE FOURTH, SECTION 10
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value of the shares of Common Stock
deliverable upon conversion of the Series A Preferred Stock, the corporation
will take any corporate action which may, in the opinion of its counsel, be
necessary in order that the corporation may validly and legally issue fully-paid
and nonassessable shares of Common Stock at such adjusted Conversion Price.
The corporation will endeavor to list the shares of Common Stock required
to be delivered upon conversion of the Series A Preferred Stock prior to such
delivery, upon the New York Stock Exchange.
Prior to the delivery of any securities which the corporation shall be
obligated to deliver upon conversion of the Series A Preferred Stock, the
corporation will endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(m) The corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of shares of
Common Stock on conversion of the Series A Preferred Stock pursuant hereto;
provided, however, that the corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
the Series A Preferred Stock to be converted and no such issue or delivery shall
be made unless and until the person requesting such issue or delivery has paid
to the corporation the amount of any such tax or has established, to the
reasonable satisfaction of the corporation, that such tax has been paid.
(8) RANKING. Any class or classes of stock of the corporation shall be
deemed to rank:
(i) prior to the Series A Preferred Stock, as to dividends or as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series A Preferred
Stock;
(ii) on a parity with the Series A Preferred Stock, as to dividends or
as to distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Series
A Preferred Stock, if the holders of such class of stock and the Series A
Preferred Stock shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the case may
be, in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation prices, without preference or priority
one over the other; and
(iii) junior to the Series A Preferred Stock, as to dividends or as to
the distribution of assets upon liquidation, dissolution or winding up, if
such stock shall be Common Stock or Class B Stock or if the holders of
Series A Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares of such
stock.
(9) VOTING. Except as herein provided or as otherwise from time to time
required by law, holders of Series A Preferred Stock shall have no voting
rights. Whenever, at any time or times, dividends payable on the shares of
Series A Preferred Stock at the time outstanding shall be in arrears for such
number of Dividend Periods, which Dividend Periods need not be consecutive,
which shall in the aggregate contain not less than 540 days, the holders of
Series A Preferred Stock shall have the exclusive right, voting separately as a
class with holders of shares of any one or more other series of preferred stock
ranking on a parity with the Series A Preferred Stock as to dividends, or on the
distribution of assets upon
25
<PAGE> 31
ARTICLE FOURTH, SECTION 10
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, to elect two directors of the corporation at
the corporation's next annual meeting of stockholders and at each subsequent
annual meeting of stockholders. At elections for such directors, each holder of
Series A Preferred Stock shall be entitled to one vote for each share held (the
holders of shares of any other series of preferred stock ranking on such a
parity being entitled to such number of votes, if any, for each share of stock
held as may be granted to them). Upon the vesting of such right of the holders
of Series A Preferred Stock, the maximum authorized number of members of the
Board of Directors shall automatically be increased by two and the two vacancies
so created shall be filled by vote of the holders of outstanding Series A
Preferred Stock (either alone or together with the holders of shares of any one
or more other series of preferred stock ranking on such a parity and having like
voting rights) as hereinafter set forth. The right of holders of Series A
Preferred Stock, voting separately as a class, to elect (either alone or
together with the holders of shares of any one or more other series of preferred
stock ranking on such a parity and having like voting rights) members of the
Board of Directors as aforesaid shall continue until such time as all dividends
accumulated on Series A Preferred Stock shall have been paid in full, at which
time such right shall terminate, except as herein or by law expressly provided,
subject to revesting in the event of each and every subsequent default of the
character above mentioned.
If the office of any director elected by the holders of Series A Preferred
Stock, voting as a class, becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or otherwise, the remaining
director elected by the holders of Series A Preferred Stock, voting as a class,
may choose a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred. Upon any termination of the right of the holders
of Series A Preferred Stock to vote for directors as herein provided, the term
of office of all directors then in office elected by Series A Preferred Stock,
voting as a class, shall terminate immediately. Whenever the term of office of
the directors elected by the holders of Series A Preferred Stock, voting as a
class, shall so terminate and the special voting powers vested in the holders of
Series A Preferred Stock shall have expired, the number of directors shall be
such number as may be provided for in the By-Laws irrespective of any increase
made pursuant to the provisions of this Section (9).
So long as any shares of the Series A Preferred Stock remain outstanding,
the consent of the holders of at least two-thirds of the shares of Series A
Preferred Stock outstanding at the time given in person or by proxy, either in
writing or at any special or annual meeting, shall be necessary to permit,
effect or validate any one or more of the following:
(a) The authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior to
Series A Preferred Stock as to dividends or the distribution of assets upon
liquidation, dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by merger, consolidation
or otherwise, of any of the provisions of the Restated Certificate of
Incorporation of the corporation which would materially and adversely affect any
right, preference or voting power of Series A Preferred Stock or of the holders
thereof; provided, however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other series of preferred stock,
or any increase in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with or junior
to the Series A Preferred Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences or voting
powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series A Preferred Stock shall have
been redeemed or sufficient funds shall have been deposited in trust to effect
such redemption, scheduled to be consummated within three months after such
time.
26
<PAGE> 32
ARTICLE FOURTH, SECTIONS 10 & 11
(10) RECORD HOLDERS. The corporation and the Transfer Agent may deem and
treat the record holder of any shares of Series A Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
SECTION 11.
SERIES B CUMULATIVE PREFERRED STOCK.
The provisions of the corporation's Certificate of the Designations,
Powers, Preferences and Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions Thereof, of the Series B Cumulative
Preferred Stock are set forth below:
(1) NUMBER OF SHARES AND DESIGNATION. Twenty-three thousand (23,000)
shares of the preferred stock, $1.00 par value, of the corporation are hereby
constituted as a series of the preferred stock designated as Series B Cumulative
Preferred Stock (the "Series B Preferred Stock").
(2) DEFINITIONS. For purposes of the Series B Preferred Stock, the
following terms shall have the meanings indicated:
"Board of Directors" shall mean the board of directors of the
corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series B Preferred
Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
"Class B Stock" shall mean the Class B Stock of the corporation, par
value $1.00 per share.
"Common Stock" shall mean the Common Stock of the corporation, par
value $1.00 per share.
"Dividend Payment Date" shall have the meaning specified in Section
3(a) hereof.
"Dividend Periods" shall mean quarterly dividend periods commencing on
the first day of March, June, September and December of each year and
ending on and including the day preceding the first day of the next
succeeding Dividend Period (other than the Initial Dividend Period).
"Initial Dividend Period" shall mean the period commencing on the Issue
Date and ending on (and including) February 28, 1993.
"Issue Date" shall mean the first date on which any shares of Series B
Preferred Stock are issued.
"Person" shall mean any individual, firm, partnership, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
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<PAGE> 33
ARTICLE FOURTH, SECTION 11
"Series A Preferred Stock" shall mean the Series A Cumulative
Convertible Preferred Stock of the corporation, par value $1.00 per share.
"Transfer Agent" means Chemical Bank or such other agent or agents of
the corporation as may be designated by the Board of Directors of the
corporation as the transfer agent for the Series B Preferred Stock.
(3) DIVIDENDS. (a) The holders of shares of the Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends at the rate per annum of
$4,125 per share of Series B Preferred Stock. Such dividends shall be cumulative
from the Issue Date, whether or not in any Dividend Period or Periods there
shall be funds of the corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the Board
of Directors, on the first Business Day of March, June, September and December
of each year (each a "Dividend Payment Date"), commencing on the first Business
Day next succeeding the Initial Dividend Period, or at such additional times and
for such interim periods, if any, as determined by the Board of Directors. Each
such dividend shall be payable in arrears to the holders of record of shares of
the Series B Preferred Stock, as they appear on the stock records of the
corporation at the close of business on such record dates, not more than 60 days
preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any regular Dividend Payment
Date, to holders of record on such date, not exceeding 45 days preceding the
payment date thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend Period for the
Series B Preferred Stock shall be computed by dividing the annual dividend rate
by four. The amount of dividends payable for the Initial Dividend Period on the
Series B Preferred Stock, or any other period shorter or longer than a full
Dividend Period on the Series B Preferred Stock, shall be computed on the basis
of twelve 30-day months and a 360-day year. Holders of shares of Series B
Preferred Stock called for redemption on a redemption date between a dividend
payment record date and the respective Dividend Payment Date shall not be
entitled to receive the dividend payable on such Dividend Payment Date. Holders
of shares of Series B Preferred Stock shall not be entitled to any dividends,
whether payable in cash, property or stock, in excess of cumulative dividends,
as herein provided, on the Series B Preferred Stock. No interest, or sum of
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on the Series B Preferred Stock which may be in arrears.
(c) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends, except as described in the next succeeding sentence, shall be
declared or paid or set apart for payment on any class or series of stock of the
corporation ranking, as to dividends, on a parity with the Series B Preferred
Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Stock for
all Dividend Periods terminating on or prior to the date of payment of such full
cumulative dividends. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, upon the shares of the Series B
Preferred Stock and any other class or series of stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon shares
of the Series B Preferred Stock and all dividends declared upon such other stock
shall be declared pro rata so that the amounts of dividends per share declared
on the Series B Preferred Stock and such other stock shall in all cases bear to
each other the same ratio that accrued dividends per share on the shares of the
Series B Preferred Stock and such other stock bear to each other.
(d) So long as any shares of the Series B Preferred Stock are outstanding,
no dividends (other than dividends or distributions paid in shares of, or
options, warrants or rights to subscribe for or purchase shares of Common Stock,
Class B Stock or other stock ranking junior to the Series B Preferred Stock, as
to dividends and upon liquidation) shall be declared or paid or set apart for
payment or other distribution declared or made upon the Common Stock, Class B
Stock or any other stock of the corporation ranking junior to the Series B
Preferred Stock, as to dividends or upon liquidation nor shall
28
<PAGE> 34
ARTICLE FOURTH, SECTION 11
any Common Stock, nor any Class B Stock nor any other such stock of the
corporation ranking junior to the Series B Preferred Stock, as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys 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 the
Series B Preferred Stock, as to dividends and upon liquidation) unless, in each
case (i) the full cumulative dividends on all outstanding shares of the Series B
Preferred Stock and any other stock of the corporation ranking on a parity with
the Series B Preferred Stock, as to dividends or upon liquidation shall have
been paid or set apart for payment for all past Dividend Periods and dividend
periods with respect to such other stock and (ii) sufficient funds shall have
been set apart for the payment of the dividend for the current Dividend Period
with respect to the Series B Preferred Stock and the dividend period with
respect to any other stock of the corporation ranking on a parity with the
Series B Preferred Stock, as to dividends or upon liquidation.
(4) LIQUIDATION PREFERENCE. (a) In the event of any liquidation,
dissolution or winding up of the corporation, whether voluntary or involuntary,
before any payment or distribution of the assets of the corporation (whether
capital or surplus) shall be made to or set apart for the holders of Common
Stock, Class B Stock or any other series or class or classes of stock of the
corporation ranking junior to the Series B Preferred Stock, upon liquidation,
dissolution or winding up, the holders of the shares of Series B Preferred Stock
shall be entitled to receive $50,000 per share plus an amount equal to all
dividends (whether or not earned or declared) accrued and accumulated and unpaid
thereon to the date of final distribution to such holders; but such holders
shall not be entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the corporation, the assets of the corporation, or
proceeds thereof, distributable among the holders of the shares of Series B
Preferred Stock shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares of stock ranking, as to
liquidation, dissolution or winding up, on a parity with the Series B Preferred
Stock, then such assets, or the proceeds thereof, shall be distributed among the
holders of shares of Series B Preferred Stock and any such other stock ratably
in accordance with the respective amounts which would be payable on such shares
of Series B Preferred Stock and any such other stock if all amounts payable
thereon were paid in full. For the purposes of this Section (4), (i) a
consolidation or merger of the corporation with one or more corporations, (ii) a
sale or transfer of all or substantially all of the corporation's assets or
(iii) a statutory share exchange shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
(b) Subject to the rights of the holders of shares of any series or class
or classes of stock ranking on a parity with or prior to Series B Preferred
Stock, upon liquidation, dissolution or winding up, upon any liquidation,
dissolution or winding up of the corporation, after payment shall have been made
in full to the holders of Series B Preferred Stock, as provided in this Section
(4), any other series or class or classes of stock ranking junior to Series B
Preferred Stock, upon liquidation, dissolution or winding up shall, subject to
the respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the holders
of Series B Preferred Stock shall not be entitled to share therein.
(5) REDEMPTION AT THE OPTION OF THE CORPORATION. (a) Series B Preferred
Stock may not be redeemed by the corporation prior to December 1, 2002, on or
after which the corporation, at its option, may, subject to the next succeeding
paragraph, redeem the shares of Series B Preferred Stock, in whole or in part,
out of funds legally available therefor, at any time or from time to time,
subject to the notice provisions and provisions for partial redemption described
below, at a redemption price of $50,000 per share, plus an amount equal to
accrued and unpaid dividends, if any, to the date fixed for redemption, whether
or not earned or declared.
In addition to any other requirement for or condition to the redemption of
the Series B Preferred Stock set forth in this Section (5), the corporation
shall not redeem any shares of Series B Preferred Stock pursuant to this Section
(5)(a) unless within the two-year period ending on the date fixed for redemption
the corporation shall have issued sufficient
29
<PAGE> 35
ARTICLE FOURTH, SECTION 11
shares of Common Stock to result in receipt by the corporation of net proceeds
from such issuances of an aggregate amount at least equal to the aggregate
liquidation preference of the shares of Series B Preferred Stock proposed to be
redeemed.
(b) In the event that full cumulative dividends on the Series B Preferred
Stock and any other class or series of stock of the corporation ranking, as to
dividends, on a parity with the Series B Preferred Stock have not been paid or
declared and set apart for payment, the Series B Preferred Stock may not be
redeemed in part and the corporation may not purchase or acquire shares of
Series B Preferred Stock or such other stock otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares of
Series B Preferred Stock and such other stock.
(c) In the event the corporation shall redeem shares of Series B Preferred
Stock, notice of such redemption shall be given by first class mail, postage
prepaid, mailed not less than 10 nor more than 60 days prior to the redemption
date, to each holder of record of the shares to be redeemed, at such holder's
address as the same appears on the stock records of the corporation. Each such
notice shall state: (1) the redemption date; (2) the number of shares of Series
B Preferred Stock to be redeemed and, if less than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places where certificates for
such shares are to be surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed shall cease to accrue on such
redemption date. Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the corporation in providing
money for the payment of the redemption price), (i) dividends on the shares of
the Series B Preferred Stock so called for redemption shall cease to accrue,
(ii) said shares shall no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as stockholders of the corporation (except the
right to receive from the corporation the redemption price without interest
thereon) shall cease. The corporation's obligation to provide moneys in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the redemption date, the corporation shall deposit with a bank or trust
company (which may be an affiliate of the corporation) having an office in the
Borough of Manhattan, City of New York, and having a capital and surplus of at
least $50,000,000, funds necessary for such redemption, in trust, with
irrevocable instructions that such funds be applied to the redemption of the
shares of Series B Preferred Stock so called for redemption. Any interest
accrued on such funds shall be paid to the corporation from time to time. Any
funds so deposited and unclaimed at the end of two years from such redemption
date shall be released or repaid to the corporation, after which, subject to any
applicable laws relating to escheat or unclaimed property, the holder or holders
of such shares of Series B Preferred Stock so called for redemption shall look
only to the corporation for payment of the redemption price.
Upon surrender in accordance with said notice of the certificates for any
such shares so redeemed (properly endorsed or assigned for transfer, if the
Board of Directors shall so require and the notice shall so state), such shares
shall be redeemed by the corporation at the applicable redemption price
aforesaid. If fewer than all the outstanding shares of Series B Preferred Stock
are to be redeemed, shares to be redeemed shall be selected by the corporation
from outstanding shares of Series B Preferred Stock not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the corporation in its sole discretion to be equitable. If fewer
than all the shares represented by any certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares without cost to
the holder thereof.
(6) SHARES TO BE RETIRED. All shares of Series B Preferred Stock purchased
or redeemed by the corporation shall be retired and canceled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series.
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<PAGE> 36
ARTICLE FOURTH, SECTION 11
(7) RANKING. Any class or classes of stock of the corporation shall be
deemed to rank:
(i) prior to the Series B Preferred Stock, as to dividends or as to
distribution of assets upon liquidation, dissolution or winding up, if the
holders of such class shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series B Preferred
Stock;
(ii) on a parity with the Series B Preferred Stock, as to dividends or
as to distribution of assets upon liquidation, dissolution or winding up,
whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Series
B Preferred Stock, if such stock shall be Series A Preferred Stock or if
the holders of such class of stock and the Series B Preferred Stock shall
be entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation prices, without preference or priority one over the other; and
(iii) junior to the Series B Preferred Stock, as to dividends or as to
the distribution of assets upon liquidation, dissolution or winding up, if
such stock shall be Common Stock or Class B Stock or if the holders of
Series B Preferred Stock shall be entitled to receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares of such
stock.
(8) VOTING. Except as herein provided or as otherwise from time to time
required by law, holders of Series B Preferred Stock shall have no voting
rights. Whenever, at any time or times, dividends payable on the shares of
Series B Preferred Stock at the time outstanding shall be in arrears for such
number of Dividend Periods, which Dividend Periods need not be consecutive,
which shall in the aggregate contain not less than 540 days, the holders of
Series B Preferred Stock shall have the exclusive right, voting separately as a
class with holders of shares of any one or more other series of preferred stock
ranking on a parity with the Series B Preferred Stock as to dividends, or on the
distribution of assets upon liquidation, dissolution or winding up and upon
which like voting rights have been conferred and are exercisable, to elect two
directors of the corporation at the corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders. At elections
for such directors, each holder of Series B Preferred Stock shall be entitled to
one vote for each share held (the holders of shares of any other series of
preferred stock ranking on such a parity being entitled to such number of votes,
if any, for each share of stock held as may be granted to them). Upon the
vesting of such right of the holders of Series B Preferred Stock, the maximum
authorized number of members of the Board of Directors shall automatically be
increased by two and the two vacancies so created shall be filled by vote of the
holders of outstanding Series B Preferred Stock (either alone or together with
the holders of shares of any one or more other series of preferred stock ranking
on such a parity and having like voting rights) as hereinafter set forth. The
right of holders of Series B Preferred Stock, voting separately as a class, to
elect (either alone or together with the holders of shares of any one or more
other series of preferred stock ranking on such a parity and having like voting
rights) members of the Board of Directors as aforesaid shall continue until such
time as all dividends accumulated on Series B Preferred Stock shall have been
paid in full, at which time such right shall terminate, except as herein or by
law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
If the office of any director elected by the holders of Series B Preferred
Stock, voting as a class, becomes vacant by reason of death, resignation,
retirement, disqualification or removal from office or otherwise, the remaining
director elected by the holders of Series B Preferred Stock, voting as a class,
may choose a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred. Upon any termination of the right of the holders
of Series B Preferred Stock to vote for directors as herein provided, the term
of office of all directors then in office elected by Series B Preferred Stock,
voting as a class, shall terminate immediately. Whenever the term of office of
the directors elected by the holders of
31
<PAGE> 37
ARTICLES FOURTH, FIFTH, SIXTH, SEVENTH & EIGHTH
Series B Preferred Stock, voting as a class, shall so terminate and the special
voting powers vested in the holders of Series B Preferred Stock shall have
expired, the number of directors shall be such number as may be provided for in
the By-Laws irrespective of any increase made pursuant to the provisions of this
Section (8).
So long as any shares of the Series B Preferred Stock remain outstanding,
the consent of the holders of at least two-thirds of the shares of Series B
Preferred Stock outstanding at the time given in person or by proxy, either in
writing or at any special or annual meeting, shall be necessary to permit,
effect or validate any one or more of the following:
(a) The authorization, creation or issuance, or any increase in the
authorized or issued amount, of any class or series of stock ranking prior to
Series B Preferred Stock as to dividends or the distribution of assets upon
liquidation, dissolution or winding up, or
(b) The amendment, alteration or repeal, whether by merger, consolidation
or otherwise, of any of the provisions of the Certificate of Incorporation of
the corporation, as amended, which would materially and adversely affect any
right, preference or voting power of Series B Preferred Stock or of the holders
thereof; provided, however, that any increase in the amount of authorized
preferred stock or the creation and issuance of other series of preferred stock,
or any increase in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with or junior
to the Series B Preferred Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences or voting
powers.
The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series B Preferred Stock shall have
been redeemed or sufficient funds shall have been deposited in trust to effect
such redemption, scheduled to be consummated within three months after such
time.
(9) RECORD HOLDERS. The corporation and the Transfer Agent may deem and
treat the record holder of any shares of Series B Preferred Stock as the true
and lawful owner thereof for all purposes, and neither the corporation nor the
Transfer Agent shall be affected by any notice to the contrary.
FIFTH. The amount of capital with which the corporation will commence business
is One Thousand Dollars ($1,000).
SIXTH. The names and places of residence of the original subscribers to the
stock and the number of shares subscribed for by each are as follows:
<TABLE>
<CAPTION>
NO. OF SHARES
NAME RESIDENCE COMMON
--------------------------- ---------------------------- ----------------------------
<S> <C> <C>
T. L. Croteau Wilmington, Delaware 3
P. B. Drew Wilmington, Delaware 3
H. E. Knox Wilmington, Delaware 4
</TABLE>
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
32
<PAGE> 38
ARTICLE NINTH, SECTION 1
NINTH. The following provisions are inserted for the management of the business
and for the conduct of the affairs of the corporation:
SECTION 1.
POWERS OF THE BOARD OF DIRECTORS.
1.1. GENERAL. In furtherance, and not in limitation, of the powers
conferred by statute, the Board of Directors is expressly authorized:
(1) To make, alter or repeal the By-Laws of the corporation; to set
apart out of any funds of the corporation available for dividends a reserve
or reserves for any proper purpose and to abolish the same in the manner in
which it was created, and to fix and determine and to vary the amount of
the working capital of the corporation; to determine the use and
disposition of the working capital and of any surplus or net profits over
and above the capital of the corporation determined as provided by law, and
to fix the times for the declaration and payment of dividends; to authorize
and cause to be executed mortgages and liens, without limit as to amount,
upon the real and personal property of the corporation; and to fix and
determine the fees and other compensation to be paid by the corporation to
its directors;
(2) To determine from time to time whether and to what extent, and at
what times and places, and under what conditions and regulations, the
accounts and books of the corporation (other than the stock ledger), or any
of them, shall be open to inspection of the stockholders; and no
stockholder shall have any right to inspect any account, book or document
of the corporation except as conferred by statute, unless authorized by a
resolution of the stockholders or directors;
(3) To make donations for the public welfare or for charitable,
scientific or educational purposes; and to cause the corporation to
cooperate with other corporations or with natural persons, or to act alone,
in the creation and maintenance of community funds or charitable,
scientific, or educational instrumentalities, and to make donations for the
public welfare or for charitable, scientific, or educational purposes; and
(4) To designate, by resolution passed by a majority of the entire
Board, one or more committees, each committee to consist of two or more of
the directors of the corporation, which to the extent provided in the
resolution or in the By-Laws of the corporation, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it.
1.2. POWERS CONFERRED BY BY-LAWS. The corporation may in its By-Laws
confer powers upon its directors in addition to the foregoing, and in addition
to the powers and authorities expressly conferred upon them by the laws of the
State of Delaware.
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<PAGE> 39
ARTICLE NINTH, SECTIONS 2, 3, 4 & 5
SECTION 2.
MEETING, OFFICERS AND BOOKS.
If the By-Laws so provide, the stockholders and the directors may hold
their meetings, and the corporation may have one or more offices, outside the
State of Delaware. The books of the corporation (subject to the provisions of
the laws of the State of Delaware) may be kept outside of the State of Delaware
at such places as from time to time may be designated by the Board of Directors.
SECTION 3.
VALIDITY OF CONTRACT.
No contract, transaction or act of the corporation shall be affected or
invalidated by the fact that any of the directors of the corporation are in any
wise interested in or connected with any other party to such contract,
transaction or act or are themselves parties to such contract, transaction or
act, provided that such interest shall be fully disclosed or otherwise known to
the Board of Directors, or a majority thereof, at a meeting of the Board at
which such contract, transaction or act is authorized, ratified or confirmed;
and any such director may be counted in determining the existence of a quorum at
any such meeting and may vote thereat in connection with such authorization,
ratification or confirmation with like force and effect as if he were not so
interested or connected or was not a party to such contract, transaction or act.
SECTION 4.
RATIFICATION.
The Board of Directors in its discretion may submit for approval,
ratification or confirmation by the stockholders at any meeting thereof any
contract, transaction or act of the Board or of any officer, agent or employee
of the corporation, and any such contract, transaction or act which shall have
been so approved, ratified or confirmed by the holders of Common Stock and
holders of Class B Stock, voting as provided in subsection 1.6 of Article FOURTH
hereof shall be as valid and binding upon the corporation and upon the
stockholders thereof as though it had been approved and ratified by each and
every stockholder of the corporation.
SECTION 5.
LIMITATION ON LIABILITY OF DIRECTORS; INDEMNIFICATION AND INSURANCE.
5.1. LIMITATION ON LIABILITY OF DIRECTORS. A director of the corporation
shall not be personally liable to the corporation or its stockholders 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 stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
34
<PAGE> 40
ARTICLE NINTH, SECTION 5
(iii) under Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit.
If the Delaware General Corporation Law is amended after approval by the
stockholders of this subsection 5.1 of Article NINTH to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
5.2. EFFECT OF ANY REPEAL OR MODIFICATION OF SUBSECTION 5.1. Any repeal or
modification of subsection 5.1 of this Article NINTH by the stockholders of the
corporation shall not adversely affect any right or protection of a director of
the corporation existing at the time of such repeal or modification.
5.3. INDEMNIFICATION AND INSURANCE.
5.3a. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative, investigative or otherwise
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director, officer or
employee of the corporation or is or was serving at the request of the
corporation as a director, officer or employee of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the corporation to provide broader indemnification
rights than said law permitted the corporation to provide prior to such
amendment), against all expense, liability and loss (including penalties, fines,
judgments, attorney's fees, amounts paid or to be paid in settlement and excise
taxes or penalties imposed on fiduciaries with respect to (i) employee benefit
plans, (ii) charitable organizations or (iii) similar matters) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person (other than pursuant to
subsection 5.3b of this Article NINTH) only if such proceeding (or part thereof)
was authorized by the Board of Directors of the corporation. The right to
indemnification conferred in this subsection 5.3a of Article NINTH shall be a
contract right and shall include the right to be paid by the corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer, including
without limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this subsection 5.3a of Article
NINTH or otherwise.
5.3b. RIGHT OF CLAIMANT TO BRING SUIT. If a claim which the corporation is
obligated to pay under subsection 5.3a of this Article NINTH is not paid in full
by the corporation within 60 days after a written claim has been received by the
corporation, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in
35
<PAGE> 41
ARTICLE NINTH, SECTIONS 5 & 6
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the corporation) that the
claimant has not met the standards of conduct which make it permissible under
the Delaware General Corporation Law for the corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
5.3c. MISCELLANEOUS. The provisions of this Section 5.3 of Article NINTH
shall cover claims, actions, suits and proceedings, civil or criminal, whether
now pending or hereafter commenced, and shall be retroactive to cover acts or
omissions or alleged acts or omissions which heretofore have taken place. If any
part of this Section 5.3 of Article NINTH should be found to be invalid or
ineffective in any proceeding, the validity and effect of the remaining
provisions shall not be affected.
5.3d. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section 5.3 of Article NINTH shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, By-Law,
agreement, vote of stockholders or disinterested directors or otherwise.
5.3e. INSURANCE. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
5.3f. INDEMNIFICATION OF AGENTS OF THE CORPORATION. The corporation may,
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and rights to be paid by the corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
agent of the corporation to the fullest extent of the provisions of this Section
5.3 of Article NINTH with respect to the indemnification and advancement of
expenses of directors, officers and employees of the corporation.
SECTION 6.
LIMITATION OF ACTIONS.
Every asserted right of action by or on behalf of the corporation or by or
on behalf of any stockholder against any past, present or future member of the
Board of Directors, or any committee thereof, or any officer or employee of the
corporation or any subsidiary thereof, arising out of or in connection with any
bonus, supplemental compensation, stock investment, stock option or other plan
or plans for the benefit of any employee, irrespective of the place where such
right of action may arise or be asserted and irrespective of the place of
residence of any such director, member, officer or employee, shall cease and be
barred upon the expiration of three years from the later of the following dates:
(a) the date of any alleged act or omission in respect of which such right of
action may be asserted to have arisen, or (b) the date upon which the
corporation shall have made generally available to its stockholders information
with respect to, as the case may be, the aggregate amount credited for a fiscal
year to a bonus or supplemental compensation reserve, or the aggregate amount of
36
<PAGE> 42
ARTICLE NINTH, SECTION 6, ARTICLE TENTH
awards in a fiscal year of bonuses or supplemental compensation, or the
aggregate amount of stock optioned or made available for purchase during a
fiscal year, or the aggregate amount expended by the corporation during a fiscal
year in connection with any other plan for the benefit of such employees, to all
or any part of which such asserted right of action may relate; and every
asserted right of action by or on behalf of any employee, past, present or
future, or any spouse, child, or legal representative thereof, against the
corporation or any subsidiary thereof arising out of or in connection with any
such plan, irrespective of the place where such asserted right of action may
arise or be asserted, shall cease and be barred by the expiration of three years
from the date of the alleged act or omission in respect of which such right of
action shall be asserted to have arisen.
TENTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the law of the State of Delaware, and all
rights of the stockholders herein are granted subject to this reservation.
37
<PAGE> 43
WE, THE UNDERSIGNED, being each of the original subscribers to the capital
stock hereinbefore named for the purpose of forming a corporation to do business
both within and without the State of Delaware, and in pursuance of the General
Corporation Law of the State of Delaware, being Chapter 65 of the Revised Code
of Delaware, and the acts amendatory thereof and supplemental thereto, do make
and file this certificate, hereby declaring and certifying that the facts herein
stated are true, and do respectively agree to take the number of shares of stock
hereinbefore set forth, and accordingly have hereunto set our hands and seals
this 9th day of July, A.D. 1919.
In presence of
HERBERT E. LATTER T. L. CROTEAU (SEAL)
STATE OF DELAWARE SS.: P. B. DREW (SEAL)
COUNTY OF NEW CASTLE H. E. KNOX (SEAL)
BE IT REMEMBERED that on this 9th day of July, A.D. 1919, personally came
before me, Herbert E. Latter, a Notary Public for the State of Delaware, T. L.
Croteau, P. B. Drew and H. E. Knox, parties to the foregoing certificate of
incorporation, known to me personally to be such, and severally acknowledged the
said certificate to be the act and deed of the signers respectively and that the
facts therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
HERBERT E. LATTER
Notary Public.
Herbert E. Latter
Notary Public
Appointed Feb. 25, 1919
State of Delaware
Term Two Years
38
<PAGE> 1
Exhibit 5
FORD MOTOR COMPANY
THE AMERICAN ROAD
DEARBORN, MICHIGAN 48121
August 22, 1994
Ford Motor Company
The American Road
Dearborn, Michigan 48121
Ford Holdings, Inc.
The American Road
Dearborn, Michigan 48121
Ladies and Gentlemen:
This will refer to the Registration Statement on Form S-3 (the
"Registration Statement") being filed by Ford Motor Company, a Delaware
corporation ("Ford"), and Ford Holdings, Inc., a Delaware corporation ("Ford
Holdings"), with the Securities and Exchange Commission (the "Commission") on
or about the date hereof pursuant to the Securities Act of 1933, as amended
(the "Act"), with respect to the proposed sale by Ford of up to 166,786 shares
of its Common Stock, par value $1.00 per share ("Ford Common Stock"), and the
proposed sale by Ford Holdings of (i) up to 4.88075 shares of its preferred
stock, designated as Series A Cumulative Preferred Stock, par value $1.00 per
share ("Ford Holdings Series A Preferred Stock") and (ii) up to 19,523
depositary shares, each representing 1/4,000 of a share of Ford Holdings Series
A Preferred Stock ("Ford Holdings Series A Depositary Shares") to be evidenced
by depositary receipts relating to the Ford Holdings Series A Depositary Shares
(the "Depositary Receipts") issued pursuant to a Deposit Agreement dated as of
June 4, 1992 among Ford Holdings; Chemical Bank, as depositary (the
"Depositary"); and the holders from time to time of the Depositary Receipts
(the "Deposit Agreement").
As the Secretary of each of Ford and Ford Holdings and an Assistant
General Counsel of Ford, I am familiar with the Registration Statement and
with the Certificate of Incorporation, the By-Laws and the affairs of each of
Ford and Ford Holdings. In connection with the Registration Statement, I have
examined, or caused to be examined, (i) the Certificate of Designations relating
to the Ford Holdings Series A Preferred Stock, (ii) the Deposit Agreement, and
(iii) a copy of the Registration Statement. I also have examined, or caused to
be examined, such other documents and
<PAGE> 2
-2-
instruments and have made, or caused to be made, such further investigation as
I have deemed necessary in connection with this opinion.
Based upon the foregoing, it is my opinion that:
1. Each of Ford and Ford Holdings has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware.
2. When (a) the registration requirements of the Act and such state
Blue Sky or securities laws as may be applicable have been complied with and
(b) shares of Ford Common Stock have been duly issued and sold in the manner
contemplated by the Registration Statement, such shares of Ford Common Stock
will be validly issued, fully paid and nonassessable, will not have been issued
in violation of or subject to an preemptive rights, and will have the rights set
forth in Ford's Certificate of Incorporation, as then amended.
3. When (a) the registration requirements of the Act and such state
Blue Sky or securities laws as may be applicable have been complied with, (b)
shares of Ford Holdings Series A Preferred Stock and Ford Holdings Series A
Depositary Shares have been duly issued and sold in the manner contemplated by
the Registration Statement and (c), with respect to such Ford Holdings Series A
Depositary Shares only, the Depositary has duly executed the Depositary
Receipts in accordance with the terms of the Deposit Agreement (Ford Holdings
having deposited such shares of Ford Holdings Series A Preferred Stock with the
Depositary pursuant to the Deposit Agreement), such shares of Ford Holdings
Series A Preferred Stock will be validly issued, fully paid and nonassessable,
will not have been issued in violation of or subject to any preemptive rights,
and will have the rights set forth in Ford Holdings' Certificate of
Incorporation, as then amended, including the amendment effected by the
Certificate of Designations relating to Ford Holdings Series A Preferred
Stock, and such Ford Holdings Series A Depositary Shares will represent legal
and valid interests in such shares of Ford Holdings Series A Preferred Stock.
In connection with the foregoing opinion, I wish to point out that I am
a member of the Bar of the State of Michigan and do not hold myself out as
expert in the laws of states other than Michigan. However, I have made, or
caused to be made, such investigation as I have deemed appropriate with respect
to the laws of other states in connection with such opinion, and nothing has
come to my attention in the course of such investigation which would lead me to
question the correctness of such opinion.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement. In giving this consent, I do not admit that I am in
the category of persons whose consent is required
<PAGE> 3
-3-
under Section 7 of the Act or the rules and regulations of the Commission
issued thereunder.
Very truly yours,
/s/J. M. Rintamaki
J. M. Rintamaki
Secretary
<PAGE> 1
Exhibit 12.1
<TABLE>
<CAPTION>
Ford Motor Company and Subsidiaries
CALCULATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
----------------------------------------------------------------------------------------
(in millions)
Six
Months For the Years Ended December 31
----------------------------------------------------------
1994 1993 1992 1991 1990 1989
------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Earnings
- --------
Income/(loss) before income taxes
and cumulative effects of changes
in accounting principles $ 4,674 $ 4,003 $ (127) $(2,587) $ 1,495 $ 6,030
Equity in net (income)/loss of
affiliates plus dividends from
affiliates (30) (98) 26 69 171 (137)
Adjusted fixed charges a/ 3,797 7,648 8,113 9,360 9,690 9,032
- ------- ------- ------- ------- ------- -------
Earnings $ 8,441 $11,553 $ 8,012 $ 6,842 $11,356 $14,925
======= ======= ======= ======= ======= =======
Combined Fixed Charges and
Preferred Stock Dividends
- --------------------------
Interest expense b/ $ 3,629 $ 7,351 $ 7,987 $ 9,326 $ 9,647 $ 8,624
-
Interest portion of rental expense c/ 133 266 185 124 105 103
-
Preferred stock dividend requirements
of majority-owned subsidiaries d/ 79 115 77 56 83 16
- ------- ------- ------- ------- ------- -------
Fixed charges 3,841 7,732 8,249 9,506 9,835 8,743
Ford preferred stock dividend
requirements e/ 255 442 317 26 0 0
- ------- ------- ------- ------- ------- -------
Total combined fixed charges
and preferred stock dividends $ 4,096 $ 8,174 $ 8,566 $ 9,532 $ 9,835 $ 8,743
======= ======= ======= ======= ======= =======
Ratios
- ------
Ratio of earnings to fixed charges 2.2 1.5 f/ g/ 1.2 1.7
- -
Ratio of earnings to combined fixed
charges and preferred stock dividends 2.1 1.4 h/ i/ 1.2 1.7
- -
</TABLE>
- - - - - -
a/ Fixed charges, as shown below, have been adjusted to exclude the amount of
interest capitalized during the period and preferred stock dividend
requirements of majority-owned subsidiaries.
b/ Includes interest, whether expensed or capitalized, and amortization of debt
expense and discount or premium relating to any indebtedness.
c/ One-third of all rental expense is deemed to be interest.
d/ Preferred stock dividend requirements of Ford Holdings, Inc., have been
increased to an amount representing the pre-tax earnings which would be
required to cover such dividend requirements based on Ford's effective
income tax rates for all periods except 1992. The U.S. statutory rate of
34% was used for 1992.
e/ Preferred stock dividend requirements of Ford Motor Company, have been
increased to an amount representing the pre-tax earnings which would be
required to cover such dividend requirements based on Ford's effective
income tax rates for all periods except 1992. The U.S. statutory rate of
34% was used for 1992.
f/ Earnings were inadequate to cover fixed charges by $237 million.
g/ Earnings were inadequate to cover fixed charges by $2,664 million.
h/ Earnings were inadequate to cover combined fixed charges and preferred stock
dividends by $554 million.
i/ Earnings were inadequate to cover combined fixed charges and preferred stock
dividends by $2,690 million.
<PAGE> 1
Exhibit 12.2
<TABLE>
<CAPTION>
Ford Holdings, Inc. and Subsidiaries
CALCULATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
----------------------------------------------------------------------------------------
(in millions)
First Half
-----------------------
1994 1993
------- -------
<S> <C> <C>
Earnings (a)
- --------
Income before income taxes $ 435 $ 364
Fixed charges 1,014 909
------ ------
Total earnings before fixed charges $1,449 $1,273
====== ======
Combined Fixed Charges and
Preferred Stock Dividends (a)
- -------------------------
Interest expense $ 982 $ 863
Interest portion of rental expense 12 12
Preferred stock dividend requirements (b) 71 55
------ ------
Total combined fixed charges and preferred
stock dividends $1,065 $ 930
====== ======
Ratio of earnings to combined fixed
charges and preferred stock dividends 1.4 1.4
</TABLE>
- - - - - -
(a) For purposes of computing the ratio of earnings to combined fixed charges
and preferred stock dividends, "earnings" represent income before income
taxes plus fixed charges. "Combined fixed charges and preferred stock
dividends" represent interest expense, amortization of debt expense and
discount or premium relating to any indebtedness, a portion of rentals
representative of an implicit interest factor for such rentals, and
dividends paid on preferred stock.
(b) Preferred stock dividend requirements have been increased to an amount
representing the pre-tax earnings which would be required to cover such
dividend requirements based on the effective income tax rates for the
respective periods.
<PAGE> 1
EXHIBIT 15
Ford Motor Company
Ford Holdings, Inc.
The American Road
Dearborn, Michigan
Re: Ford Motor Company and Ford Holdings, Inc. Registration Statement on Form
S-3
We are aware that our reports dated April 27, 1994 and July 27, 1994
accompanying the unaudited interim financial information of Ford Motor Company
and Subsidiaries for the periods ended March 31, 1994 and 1993 and for the
periods ending June 30, 1994 and 1993 and included in the Ford Motor Company
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994 and June
30, 1994, respectively, are incorporated by reference in this Registration
Statement. Pursuant to Rule 436(c) under the Securities Act of 1933, these
reports should not be considered a part of the Registration Statement prepared
or certified by us within the meaning of Sections 7 and 11 of the Act.
We are also aware that our reports dated April 27, 1994 and July 27, 1994
accompanying the unaudited interim financial information of Ford Holdings, Inc.
for the periods ended March 31, 1994 and 1993 and for the periods ending June
30, 1994 and 1993 and included in the Ford Holdings, Inc. Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1994 and June 30, 1994,
respectively, are incorporated by reference in this Registration Statement.
Pursuant to Rule 436(c) under the Securities Act of 1933, these reports should
not be considered a part of the Registration Statement prepared or certified by
us within the meaning of Sections 7 and 11 of the Act.
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
August 18, 1994
<PAGE> 1
EXHIBIT 23.2
Ford Motor Company
Ford Holdings, Inc.
The American Road
Dearborn, Michigan
CONSENT OF COOPERS & LYBRAND L.L.P.
Re: Ford Motor Company and Ford Holdings, Inc. Registration Statement on Form
S-3
We consent to the incorporation by reference in this Registration Statement of
our reports dated February 1, 1994 on our audits of the consolidated financial
statements and financial statement schedules of Ford Motor Company at December
31, 1993 and 1992, and for the years ended December 31, 1993, 1992 and 1991,
which reports are included in, or incorporated by reference in, Ford's 1993
Annual Report on Form 10-K.
We also consent to the incorporation by reference in this Registration
Statement of our reports dated February 1, 1994 on our audits of the
consolidated financial statements and financial statement schedules of Ford
Holdings, Inc. at December 31, 1993 and 1992, and for the years ended December
31, 1993, 1992 and 1991, which reports are included in, or incorporated by
reference in, Ford Holdings, Inc.'s 1993 Annual Report on Form 10-K.
We also consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
400 Renaissance Center
Detroit, Michigan 48243
August 18, 1994
<PAGE> 1
Exhibit 24.1
FORD MOTOR COMPANY
CERTIFICATE
I, J. M. Rintamaki, Secretary of FORD MOTOR COMPANY, a Delaware
corporation (the "Company"), hereby certify, to the best of my knowledge and
belief, that attached hereto are true and correct copies of resolutions
excerpted from the minutes of proceedings of the Board of Directors of the
Company; such resolutions were duly adopted by the Board of Directors of the
Company at a meeting duly called and held on March 11, 1993, and such
resolutions are in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand on this 22nd day of
August, 1994.
/s/J. M. Rintamaki
J. M. Rintamaki
Secretary
Attachment
<PAGE> 2
FORD MOTOR COMPANY
Excerpts from the Minutes of a Meeting
of the Board of Directors of the Company
Held on March 11, 1993
RESOLUTIONS RELATING TO ISSUANCE OF COMMON STOCK
PURSUANT TO DIVIDEND REINVESTMENT PLANS
WHEREAS, at a meeting held on October 8, 1992, the Board of Directors
authorized the establishment by the Company and any subsidiary of the Company
of one or more dividend reinvestment and stock purchase plans and authorized
the issuance of up to 100,000 shares of the Company's Common Stock, par value
$1.00 per share ("Common Stock"), pursuant to any such Plans, and
WHEREAS, the Ford Motor Company and Ford Holdings, Inc. Dividend
Reinvestment and Stock Purchase Plan (the "Existing Plan") was established
pursuant to such authority and 100,000 shares of Common Stock were registered
with the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), for issuance under the Existing
Plan.
NOW, THEREFORE, BE IT
RESOLVED, That the Company be and hereby is authorized to establish, by
itself or together with one or more subsidiaries of the Company, in addition to
the Existing Plan, one or more dividend reinvestment plans (the "New Plans"
and, together with the Existing Plan, the "Plans") for holders from time to
time of outstanding shares of the Company's or any such subsidiary's preferred
stock (and/or depositary shares representing such preferred stock ("depositary
shares")), providing for the reinvestment of any dividends received by such
holders on shares of such preferred stock (and/or depositary shares) held by
them in shares of Common Stock and/or shares of stock of any such subsidiary,
and that the Chairman of the Board of Directors, the President, any Executive
Vice President, any Vice President, the Treasurer and any Assistant Treasurer,
and each of them, be and hereby are authorized, to specify the terms and
conditions of any New Plan (including, without limitation, the price at which
shares of Common Stock may be purchased under such New Plan, subject to the
proviso in the next succeeding resolution) and to select the agent or
administrator for any New Plan.
RESOLVED, That the Company be and hereby is authorized to register with
the Commission pursuant to the Act and to issue and sell pursuant to the Plans,
in one or more public offerings within and/or outside the United States, up to
5,000,000 authorized but unissued shares of Common Stock, less such number of
shares of Common Stock theretofore registered with the Commission pursuant the
resolutions set forth below under the caption "RESOLUTIONS RELATING TO EMPLOYEE
SAVINGS PLANS" (the "Plan Securities"), in such amount and at such purchase
price (including a price determined pursuant to a formula), and upon such
additional terms and conditions as are provided under the Plan pursuant to
which such shares are issued; provided, however, that each share of Common
Stock shall have a purchase price of not less than the par value of a share of
Common Stock.
<PAGE> 3
RESOLVED, That the preparation by the Company of one or more
Registration Statements on Form S-3 or such other form as may be appropriate
covering the Plan Securities, including prospectuses, exhibits and other
documents, to be filed with the Commission for the purpose of registering the
offer and sale of the Plan Securities, be and it hereby is in all respects
approved; that the directors and appropriate officers of the Company, and each
of them, be and hereby are authorized to sign and execute in their own behalf,
or in the name and on behalf of the Company, or both, as the case may be, any
such Registration Statement, with such changes, if any, therein, including
amendments to the prospectus and the addition or amendment of exhibits and
other documents relating thereto or required by law or regulation in connection
therewith, all in such form as such directors and officers may deem necessary,
appropriate or desirable, as conclusively evidenced by their execution thereof,
and that the appropriate officers of the Company, and each of them, be and
hereby are authorized to cause any such Registration Statement, so executed, to
be filed with the Commission; and, prior to the effective date of any such
Registration Statement the appropriate officers of the Company are directed to
use their best efforts to furnish each director and each officer signing such
Registration Statement with a copy of such Registration Statement, and if,
prior to the effective date of any such Registration Statement, material
changes therein or material additions thereto are proposed to be made, other
than changes and additions of a type authorized under these resolutions to be
approved by officers of the Company as provided in these resolutions, the
appropriate officers of the Company are directed to use their best efforts to
furnish each director, and each officer signing any such Registration
Statement, with a copy of such Registration Statement and each amendment
thereto as filed with the Commission, or a description of such changes or
additions, or a combination thereof, in as complete and final form as
practicable and in sufficient time to permit each director and each such
officer so desiring to object to any part of any such Registration Statement
before it becomes effective.
RESOLVED, That the directors and appropriate officers of the Company,
and each of them, be and hereby are authorized to sign and execute on their own
behalf, or in the name and on behalf of the Company, or both, as the case may
be, any and all amendments (including post-effective amendments) to any
Registration Statement, including amendments to the prospectus and the addition
or amendment of exhibits and other documents relating thereto or required by
law or regulation in connection therewith, all in such form, with such changes,
if any, therein, as such directors and officers may deem necessary, appropriate
or desirable, as conclusively evidenced by their execution thereof, and that
the appropriate officers of the Company, and each of them, be and hereby are
authorized to cause such amendment or amendments, so executed, to be filed with
the Commission; and if, prior to the effective date of each such post-effective
amendment, material changes or material additions are proposed to be made in or
to any such Registration Statement or any amendment thereto in the form in
which it most recently became effective, other than changes and additions of a
type authorized under these resolutions to be approved by officers of the
Company, the appropriate officers of the Company are directed to use their best
efforts to furnish each director, and each officer signing such post-effective
amendment, with a copy of such post-effective amendment or a description of all
material changes or additions therein, or a combination thereof, in as complete
and final form as practicable and in sufficient time to permit each director
and each such officer so desiring to object to any part of such post-effective
amendment before it becomes effective.
-2-
<PAGE> 4
RESOLVED, That each officer and director who may be required to sign
and execute any of the Registration Statements authorized by these resolutions
or any amendment thereto or document in connection therewith (whether on behalf
of the Company, or as an officer or director of the Company, or otherwise), be
and hereby is authorized to execute a power of attorney appointing S. A.
Seneker, D. N. McCammon, M. S. Macdonald, J. W. Martin, Jr., J. A. Courter, J.
M. Rintamaki, L. J. Ghilardi, K. S. Lamping and M. F. Marecki, and each of
them, severally, his or her true and lawful attorney or attorneys to sign in
his or her name, place and stead in any such capacity any such Registration
Statement and any and all amendments (including post-effective amendments)
thereto and documents in connection therewith, and to file the same with the
Commission, each of said attorneys to have power to act with or without the
other, and to have full power and authority to do and perform, in the name and
on behalf of each of said officers and directors who shall have executed such a
power of attorney, every act whatsoever which such attorneys, or any of them,
may deem necessary, appropriate or desirable to be done in connection therewith
as fully and to all intents and purposes as such officers or directors might or
could do in person.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized in the name and on behalf of the Company to take any and
all action which such persons, or any of them, may deem necessary, appropriate
or desirable in order to obtain a permit, register or qualify the Plan
Securities for issuance and sale or to request an exemption from registration
of the Plan Securities or to register or obtain a license for the Company as a
dealer or broker under the securities laws of such of the states of the United
States of America as such persons, or any of them, may deem necessary,
appropriate or desirable, and in connection with such registrations, permits,
licenses, qualifications and exemptions to execute, acknowledge, verify,
deliver, file and publish all such applications, reports, resolutions,
irrevocable consents to service of process, powers of attorney and other papers
and instruments as may be required under such laws, and to take any and all
further action which such persons, or any of them, may deem necessary,
appropriate or desirable in order to maintain such registrations in effect for
as long as such persons, or any of them, may deem to be in the best interests
of the Company.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized to designate any licensed California broker-dealer as the
Company's attorney-in-fact for the purpose of executing and filing one or more
applications and amendments thereto on behalf of the Company, under applicable
provisions of the California Corporate Plan Securities Law of 1968, for the
registration or qualification of part or all of the Plan Securities for
offering and sale in the State of California.
RESOLVED, That any and all haec verba resolutions which may be required
by the Blue Sky or securities laws of any state in which the Company intends to
offer to sell its securities be, and they hereby are, adopted; that the proper
officers of the Company be, and they hereby are, authorized to certify that
such resolutions were duly adopted at this meeting; and that the Secretary of
the Company shall cause a copy of each resolution so certified to be attached
to the minutes of this meeting.
-3-
<PAGE> 5
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized, in the name and on behalf of the Company,
to take such action as such officers, or any of them, may deem necessary,
appropriate or desirable to make application for the listing of the Plan
Securities on the New York, Boston, Midwest, Pacific Coast and Philadelphia
Stock Exchanges in the United States, the Montreal and Toronto Stock Exchanges
in Canada, the Tokyo Stock Exchange in Japan, and the Antwerp, Brussels,
London, Scottish, Berlin, Dusseldorf, Frankfort, Hamburg, Munich, Amsterdam,
Luxembourg, Zurich, Basle, Geneva, Lausanne and Paris Stock Exchanges in Europe
or any other stock exchange, and that the Chairman of the Board of Directors,
the President, any Executive Vice President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer and any Assistant Treasurer, and each of
them, be and hereby are designated a representative of the Company to appear
before the Corporate Services Division or other appropriate body of any such
exchange and take all such other steps as such persons, or any of them, may
deem necessary, appropriate or desirable to effect such listing.
RESOLVED, That, in connection with each application of the Company to
the New York Stock Exchange, Inc., any of the above-listed stock exchanges or
any other stock exchange, for the listing on such exchange of the Plan
Securities, the Company enter into an agreement providing for the
indemnification by the Company of such Exchange, its governors, officers,
employees and its subsidiary companies and innocent purchasers for value of the
Plan Securities or any one or more of them, as the case may be, from and
against losses, liabilities, claims, damages or accidents in connection with
the use of facsimile signatures on certificates representing the Plan
Securities; and that the Chairman of the Board of Directors, the President, any
Executive Vice President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized in the name and on behalf of the Company and under its
corporate seal to execute and deliver to such exchange, the aforesaid
indemnification agreement in such form as the person or persons executing the
same may deem necessary, appropriate or desirable, as conclusively evidenced by
his, her or their execution thereof.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President or any Vice President, and the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary, be and hereby
are authorized, in the name and on behalf of the Company and under its
corporate seal (which may be a facsimile of such seal), to execute (by manual
or facsimile signature) certificates representing the Plan Securities (and, in
addition, certificates representing the Plan Securities to replace any such
certificates which are lost, stolen, mutilated or destroyed and such
certificates required for exchange, substitution or transfer), all as provided
in the Certificate of Incorporation and By-Laws of the Company.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Executive Vice President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized to appoint one or more paying agents, registrars, issuing
agents, transfer agents, and other agents and functionaries to, among other
things, issue or countersign, make transfers of and register the certificates
representing the Plan Securities, and that any such officer be and hereby is
authorized to execute and deliver, in the name and on behalf of the Company,
any agreement, instrument or document relating to any such appointment;
provided, however, that the Company may at any time elect to act in any such
capacity itself.
-4-
<PAGE> 6
RESOLVED, That, when shares of Common Stock shall be issued, sold and
delivered in accordance with the terms of any Plan, such shares of Common Stock
shall be, and are hereby declared to be, fully-paid and non-assessable shares
of Common Stock of the Company and not liable to any further calls or
assessments thereon, and the holders thereof shall not be liable for any
further payment in respect thereof.
RESOLVED, That, upon the issuance of authorized but unissued shares of
Common Stock in accordance with the foregoing resolutions, an amount equal to
the par value of the Common Stock so issued shall be credited to the capital
stock account of the Company.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf of
the Company, to take any action (including, without limitation, the appointment
of agents and the payment of expenses), and to execute (by manual or facsimile
signature) and deliver any and all letters, documents or other writings, that
such officer or officers may deem necessary, appropriate or desirable in order
to enable the Company fully to exercise its rights and to perform its
obligations under any Plan, or otherwise carry out the purposes and intents of
each and all of the foregoing resolutions.
-5-
<PAGE> 7
Exhibit 24.1
POWER OF ATTORNEY WITH RESPECT TO REGISTRATION STATEMENTS
COVERING COMMON STOCK OF FORD MOTOR COMPANY
FOR ISSUANCE UNDER DIVIDEND REINVESTMENT PLANS
AND EMPLOYEE SAVINGS PLANS
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned, an officer
and/or director of FORD MOTOR COMPANY (the "Company"), does hereby constitute
and appoint S. A. Seneker, J. C. Hausman, D. N. McCammon, M. L. Reichenstein,
J. W. Martin, Jr., J. A. Courter, J. M. Rintamaki, L. J. Ghilardi, K. S.
Lamping and M. F. Marecki, and each of them, severally, his or her true and
lawful attorney and agent at any time and from time to time to do any and all
acts and things and execute, in his or her name (whether on behalf of the
Company, or as an officer or director of the Company, or by attesting the seal
of the Company, or otherwise), any and all instruments which said attorney and
agent may deem necessary or advisable in order to enable the Company and its
subsidiaries to comply with the Securities Act of 1933, as amended, and any
requirements of the Securities and Exchange Commission (the "Commission") in
respect thereof, in connection with a Registration Statement or Registration
Statements and any and all amendments (including post-effective amendments)
thereto relating to the issuance of Common Stock under (i) the Dividend
Reinvestment and Stock Purchase Plan of Ford Motor Company and Ford Holdings,
Inc. and any other dividend reinvestment and stock purchase plans of the
Company and (ii) the Ford Motor Company Savings and Stock Investment Plan for
Salaried Employees, the Ford Motor Company Tax-Efficient Savings Plan for
Hourly Employees, the Ford Credit Savings Plan and the Associates First Capital
Corporation Retirement Savings and Profit Sharing Plan, as authorized by the
Board of Directors of the Company at a meeting held on March 11, 1993,
including specifically but without limitation thereto, power and authority to
sign his or her name (whether on behalf of the Company, or as an officer or
director of the Company, or by attesting the seal of the Company, or otherwise)
to such a Registration Statement or Registration Statements and to such
amendments to be filed with the Commission, or any of the exhibits, financial
statements and schedules, or the Prospectuses, filed therewith, and to file the
same with the Commission; and each of the undersigned does hereby ratify and
confirm all that said attorneys and agents, and each of them, shall do or cause
to be done by virtue hereof. Any one of said attorneys and agents shall have,
and may exercise, all the powers hereby conferred.
IN WITNESS WHEREOF, each of the undersigned has signed his or her name
hereto as of March 11, 1993.
Colby H. Chandler Michael D. Dingman
- ------------------------------- ---------------------------------
(Colby H. Chandler) (Michael D. Dingman)
<PAGE> 8
Edsel B. Ford II William C. Ford
- ------------------------------- ---------------------------------
(Edsel B. Ford II) (William C. Ford)
William C. Ford, Jr. Allan D. Gilmour
- ------------------------------- ---------------------------------
(William C. Ford, Jr.) (Allan D. Gilmour)
Roberto C. Goizueta Irvine O. Hockaday, Jr.
- ------------------------------- ---------------------------------
(Roberto C. Goizueta) (Irvine O. Hockaday, Jr.)
Ellen R. Marram
- ------------------------------- ---------------------------------
(Drew Lewis) (Ellen R. Marram)
Kenneth H. Olsen Harold A. Poling
- -------------------------------- ---------------------------------
(Kenneth H. Olsen) (Harold A. Poling)
Carl E. Reichardt Louis R. Ross
- -------------------------------- --------------------------------
(Carl E. Reichardt) (Louis R. Ross)
Stanley A. Seneker Alexander J. Trotman
- -------------------------------- --------------------------------
(Stanley A. Seneker) (Alexander J. Trotman)
Murray L. Reichenstein
- --------------------------------
(Murray L. Reichenstein)
<PAGE> 1
EXHIBIT 24.2
FORD HOLDINGS, INC.
CERTIFICATE
I, L. J. Ghilardi, an Assistant Secretary of FORD HOLDINGS, INC., a
Delaware corporation (the "Company"), hereby certify, to the best of my
knowledge and belief, that attached hereto are true and correct copies of
resolutions duly adopted by unanimous written consent of the Board of Directors
of the Company, dated as of August 18, 1994, pursuant to Section 141(f) of the
General Corporation Law of the State of Delaware, and the same resolutions are
in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand on this 22nd day of
August, 1994.
/s/ L. J. Ghilardi
------------------
L. J. Ghilardi
Assistant Secretary
Attachment
<PAGE> 2
Exhibit 24.2
FORD HOLDINGS, INC.
RESOLUTIONS RELATING TO ISSUANCE OF PREFERRED STOCK
RESOLVED, That the proposed form of Certificate of the Designations,
Powers, Preferences and Relative, Participating or Other Rights, and the
Qualifications, Limitations or Restrictions thereof, of Preferred Stock of the
Company, par value $1.00 per share ("Preferred Stock"), a copy of which is
available for examination at this meeting (the "Certificate of Designations"),
creating and establishing one or more series of Preferred Stock to be filed
with the Secretary of State of the State of Delaware, be and hereby is approved
in all respects, and that the resolutions set forth therein be and hereby are
adopted and approved as if fully set forth herein.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company, and each of them, be and hereby are
authorized and directed, in the name and on behalf of the Company, to prepare,
execute and cause to be filed, prior to the issuance of any shares of Preferred
Stock, with the Secretary of State of the State of Delaware and any other
appropriate governmental agency or office, the Certificate of Designations
designating such shares of Preferred Stock and describing the terms and
provisions thereof, in such form and with such changes or additions to such
terms and provisions as the Certificate of Designations Committee, referred to
below, may approve.
RESOLVED, That the Company be and hereby is authorized to issue and
sell, in one or more public or private offerings within and/or outside the
United States, up to eighty-two thousand eight hundred ninety-nine and one-half
(82,899.5) shares of Preferred Stock with an aggregate liquidation preference
not to exceed $1,000,000,000 and any Depositary Shares or receipts for such
Depositary Shares (the "Depositary Shares"), each representing a fractional
interest of a share of Preferred Stock, in such amount and at such purchase
price or prices (including a price determined pursuant to a formula) and upon
such additional terms and conditions, as may be fixed by the Certificate of
Designations Committee referred to below; provided, however, that each share of
Preferred Stock shall have a purchase price of not less than $1.00 per share
and each Depositary Share shall have a purchase price of not less than an
amount per share equal to $1.00 multiplied by the applicable fraction of a
share of Preferred Stock represented by such Depositary Share; provided,
further, that the number of shares of Preferred Stock issued pursuant to these
resolutions, when
<PAGE> 3
-2-
combined with the number of shares of any other preferred stock of the Company
then issued and outstanding shall not exceed one hundred thousand (100,000).
RESOLVED, That the Company be and hereby is authorized to issue and/or
sell, in one or more public or private offerings within and/or outside the
United States, purchase contracts ("Preferred Stock Purchase Contracts") which
permit, require or otherwise allow the holder or holders thereof to purchase up
to eighty-two thousand eight hundred ninety-nine and one-half (82,899.5) shares
of Preferred Stock with an aggregate liquidation preference not to exceed
$1,000,000,000 and/or any Depositary Shares, such Preferred Stock Purchase
Contracts to be in such amount and at such purchase price or prices (including
a price determined pursuant to a formula) and upon such additional terms and
conditions, as may be fixed by the Certificate of Designations Committee
referred to below.
RESOLVED, That the Company be and hereby is authorized to issue and/or
sell Preferred Stock Purchase Contracts separately or in conjunction with the
issue and sale of debt or other securities of the Company or an affiliate of
the Company (Preferred Stock Purchase Contracts together with other securities
issued and/or sold in conjunction therewith are referred to herein as the
"Capital Units").
RESOLVED, That the Company be and hereby is authorized to register with
the Securities and Exchange Commission (the "Commission") pursuant to the
Securities Act of 1933, as amended (the "Act"), (i) up to eighty-two thousand
eight hundred ninety-nine and one-half (82,899.5) shares of Preferred Stock and
any Depositary Shares, (ii) Preferred Stock Purchase Contracts covering a total
of eighty-two thousand eight hundred ninety-nine and one-half (82,899.5) shares
of Preferred Stock and any Depositary Shares, and (iii) the Capital Units (such
Preferred Stock, Depositary Shares, if any, Preferred Stock Purchase Contracts,
if any, and Capital Units, if any, being collectively referred to herein as the
"Equity Securities").
RESOLVED, That there is hereby established as a committee of the Board
of Directors of the Company the Certificate of Designations Committee, such
committee to have the full power and authority of the Board of Directors to (A)
establish the terms of the sale of the Equity Securities and the final terms of
the Certificate of Designations creating and establishing the Preferred Stock,
including, without limitation (i) the purchase price or method of determining
the purchase price (including a price determined pursuant to a formula), not
less than $1.00 per share (in the case of the Preferred Stock) and not less
than an amount per share equal to $1.00 multiplied by the applicable fraction
of a share of Preferred Stock represented by each Depositary Share (in the case
of any Depositary Shares), to be paid by any underwriters or any firm,
institution, partnership or other person purchasing
<PAGE> 4
-3-
the Equity Securities from the Company, (ii) the dividend rate or rates or the
method of determining the dividend rate or rates (including dividend rates
determined pursuant to a formula) and (iii) any terms for conversion or
exchange into other securities of the Company or another person, and (B) to
approve of such changes or additions to such terms and provisions of the
Certificate of Designations as the Certificate of Designations Committee may
deem appropriate and to effect or cause the filing thereof with the Secretary
of State of the State of Delaware and any other appropriate governmental agency
or office; provided, however, that the Certificate of Designations Committee
shall have no authority to fix the voting powers of the Preferred Stock.
RESOLVED, That the Certificate of Designations Committee shall consist
of two Directors of the Company; that said two Directors shall constitute a
quorum for the transaction of business by such committee; that Malcolm S.
Macdonald and David N. McCammon be and hereby are designated to serve as
members of such committee until their successors shall have been designated and
have qualified, or as otherwise provided in the By-Laws of the Company; and
that any one or two, as the case may be, of the other Directors of the Company
be and hereby are designated as alternate committee members to serve in the
event that Malcolm S. Macdonald and David N. McCammon, or either of them,
should be unable or fail to serve.
RESOLVED, That the preparation by the Company of a Registration
Statement on Form S-3 or such other form as may be appropriate covering the
Equity Securities, including prospectuses, exhibits and other documents, to be
filed with the Commission for the purpose of registering the offer and sale of
the Equity Securities, be and hereby is in all respects approved; that the
directors and appropriate officers of the Company, and each of them, be and
hereby are authorized to sign and execute in their own behalf, or in the name
and on behalf of the Company, or both, as the case may be, any such
Registration Statement, with such changes, if any, therein, including
amendments to the prospectus and the addition or amendment of exhibits and
other documents relating thereto or required by law or regulation in connection
therewith, all in such form as such directors and officers may deem necessary,
appropriate or desirable, as conclusively evidenced by their execution thereof,
and that the appropriate officers of the Company, and each of them, be and
hereby are authorized to cause any such Registration Statement, so executed, to
be filed with the Commission; and, prior to the effective date of any such
Registration Statement, and if the Vice President - General Counsel or the
Secretary deems it advisable, the appropriate officers of the Company are
directed to use their best efforts to furnish each director and each officer
signing such Registration Statement with a copy of such Registration Statement,
and if, prior to the effective date of any such Registration Statement,
material changes therein or material additions thereto are proposed to be made,
other than changes and additions of a type authorized under these resolutions
to be approved by officers of the Company as provided
<PAGE> 5
-4-
in these resolutions, and if the Vice President - General Counsel or the
Secretary deems it advisable, the appropriate officers of the Company are
directed to use their best efforts to furnish each director, and each officer
signing any such Registration Statement, with a copy of such Registration
Statement and each amendment thereto as filed with the Commission, or a
description of such changes or additions, or a combination thereof, in as
complete and final form as practicable and in sufficient time to permit each
director and each such officer so desiring to object to any part of any such
Registration Statement before it becomes effective.
RESOLVED, That the directors and appropriate officers of the Company,
and each of them, be and hereby are authorized to sign and execute in their own
behalf, or in the name and on behalf of the Company, or both, as the case may
be, any and all amendments (including post-effective amendments) to any
Registration Statement, including amendments to the prospectus and the addition
or amendment of exhibits and other documents relating thereto or required by
law or regulation in connection therewith, all in such form, with such changes,
if any, therein, as such directors and officers may deem necessary, appropriate
or desirable, as conclusively evidenced by their execution thereof, and that
the appropriate officers of the Company, and each of them, be and hereby are
authorized to cause such amendment or amendments, so executed, to be filed with
the Commission; and if, prior to the effective date of each such post-effective
amendment, material changes or material additions are proposed to be made in or
to any such Registration Statement or any amendment thereto in the form in
which it most recently became effective, other than changes and additions of a
type authorized under these resolutions to be approved by officers of the
Company, and if the Vice President - General Counsel or the Secretary deems it
advisable,the appropriate officers of the Company are directed to use their
best efforts to furnish each director, and each officer signing such
post-effective amendment, with a copy of such post-effective amendment or a
description of all material changes or additions therein, or a combination
thereof, in as complete and final form as practicable and in sufficient time to
permit each director and each such officer so desiring to object to any part of
such post-effective amendment before it becomes effective.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
execute and file with the Commission and the New York Stock Exchange, Inc., for
and on behalf of the Company, a Registration Statement, on Form 8-A or such
other form as may be appropriate, including any and all exhibits and other
documents relating thereto, for the registration under the Securities Exchange
Act of 1934, as amended, of the Depositary Shares, the Preferred Stock Purchase
Contracts, the Capital Units and/or the Preferred Stock, and any and all
amendments to such Registration Statement, in such form as the person or
persons
<PAGE> 6
-5-
executing the same may deem necessary, appropriate or desirable, as
conclusively evidenced by his or their execution thereof.
RESOLVED, That each officer and director who may be required to sign
and execute any of the Registration Statements authorized by these resolutions
or any amendment thereto or document in connection therewith (whether on behalf
of the Company, or as an officer or director of the Company, or otherwise), be
and hereby is authorized to execute a power of attorney appointing S. A.
Seneker, D. N. McCammon, M. S. Macdonald, J. W. Martin, Jr., F. B. Kulp, J. M.
Rintamaki, T. J. DeZure, L. J. Ghilardi, P. M. Donnelly, K. S. Lamping and P.
J. Sherry, Jr., and each of them, severally, his or her true and lawful
attorney or attorneys to sign in his or her name, place and stead in any such
capacity any such Registration Statement and any and all amendments (including
post-effective amendments) thereto and documents in connection therewith, and
to file the same with the Commission, each of said attorneys to have power to
act with or without the other, and to have full power and authority to do and
perform, in the name and on behalf of each of said officers and directors who
shall have executed such a power of attorney, every act whatsoever which such
attorneys, or any of them, may deem necessary, appropriate or desirable to be
done in connection therewith as fully and to all intents and purposes as such
officers or directors might or could do in person.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized in the
name and on behalf of the Company to take any and all action which such
persons, or any of them, may deem necessary, appropriate or desirable in order
to obtain a permit, register or qualify the Equity Securities for issuance and
sale or to request an exemption from registration of the Equity Securities or
to register or obtain a license for the Company as a dealer or broker under the
securities laws of such of the states of the United States of America as such
persons, or any of them, may deem necessary, appropriate or desirable, and in
connection with such registrations, permits, licenses, qualifications and
exemptions to execute, acknowledge, verify, deliver, file and publish all such
applications, reports, resolutions, irrevocable consents to service of process,
powers of attorney and other papers and instruments as may be required under
such laws, and to take any and all further action which such persons, or any of
them, may deem necessary, appropriate or desirable in order to maintain such
registrations in effect for as long as such persons, or any of them, may deem
to be in the best interests of the Company.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
designate any licensed California broker-dealer as the Company's
attorney-in-fact for the
<PAGE> 7
-6-
purpose of executing and filing one or more applications and amendments thereto
on behalf of the Company, under applicable provisions of the California
Corporate Securities Law of 1968, for the registration or qualification of part
or all of the Equity Securities for offering and sale in the State of
California.
RESOLVED, That any and all haec verba resolutions which may be required
by the Blue Sky or securities laws of any state in which the Company intends to
offer to sell the Equity Securities be, and they hereby are, adopted; that the
proper officers of the Company be, and they hereby are, authorized to certify
that such resolutions were duly adopted at this meeting; and that the Secretary
of the Company shall cause a copy of each resolution so certified to be
attached to the minutes of this meeting.
RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized, in the name and on behalf of the Company,
to take such action as such officers, or any of them, may deem necessary,
appropriate or desirable to make application for the listing of the Equity
Securities on the New York Stock Exchange or any other Stock Exchange, and that
the Chairman of the Board of Directors, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer and any Assistant Treasurer,
and each of them, be and hereby are designated a representative of the Company
to appear before the Corporate Services Division or other appropriate body of
any such Exchange and take all such other steps as such persons, or any of
them, may deem necessary, appropriate or desirable to effect such listing.
RESOLVED, That, in connection with each application of the Company to
the New York Stock Exchange, Inc. or any other Stock Exchange, for the listing
on such Exchange of the Equity Securities, the Company enter into an agreement
providing for the indemnification by the Company of such Exchange, its
governors, officers, employees and its subsidiary companies and innocent
purchasers for value of the Equity Securities or any one or more of them, as
the case may be, from and against losses, liabilities, claims, damages or
accidents in connection with the use of facsimile signatures on certificates
representing the Equity Securities; and that the Chairman of the Board of
Directors, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized in the name and on behalf of the Company and under its
corporate seal to execute and deliver to such Exchange, the aforesaid
indemnification agreement in such form as the person or persons executing the
same may deem necessary, appropriate or desirable, as conclusively evidenced by
his, her or their execution thereof.
RESOLVED, That the Board of Directors hereby adopts the forms of
certificates for the Depositary Shares and the Preferred Stock, specimens of
which will be available for examination at the
<PAGE> 8
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principal office of the Company, such forms of certificates to have such
changes as the appropriate officers of the Company may approve.
RESOLVED, That the Chairman of the Board of Directors, the President or
any Vice President, and the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary, be and hereby are authorized, in the name and on
behalf of the Company and under its corporate seal (which may be a facsimile of
such seal), to execute (by manual or facsimile signature) certificates
representing the Equity Securities (and, in addition, certificates representing
the Equity Securities to replace any such certificates which are lost, stolen,
mutilated or destroyed and such certificates required for exchange,
substitution or transfer), all as provided in the Certificate of Incorporation
and By-Laws of the Company.
RESOLVED, That the Chairman of the Board of Directors, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer and
any Assistant Treasurer, and each of them, be and hereby are authorized to
appoint one or more paying agents, registrars, issuing agents, transfer agents,
and other agents and functionaries to, among other things, issue or
countersign, make transfers of, register the certificates representing the
Equity Securities, or implement or act in connection with any auction or
remarketing procedures applicable to the Equity Securities, and that any such
officer be and hereby is authorized to execute and deliver, in the name and on
behalf of the Company, any agreement, instrument or document relating to any
such appointment; provided, however, that the Company may at any time elect to
act in any such capacity itself.
RESOLVED, That, subject to the right of the Board of Directors to
rescind or modify the dividends to be declared and payable on any dividend
payment date with respect to any shares of Preferred Stock, the dividend rate
of which is determined pursuant to a formula or procedure ("Variable
Preferred"), there shall be deemed to be declared, and be declared, with
respect to each dividend period thereof (any such declaration to be effective
on the declaration date applicable to such dividend period, without further
action of the Board of Directors), a dividend on each of the outstanding shares
of Variable Preferred to which such dividend period relates at the dividend
rate per annum (as determined in accordance with the Certificate of
Designations) that may be payable with respect to such shares, payable on the
dividend payment date for such dividend period to the holders of such shares of
Variable Preferred as such holders appear on the stock transfer books of the
Company on the related record date, all determined in accordance with the
Certificate of Designations; provided that any such declaration shall not be
effective with respect to any dividend on any such dividend payment date,
unless the Vice President-Controller, Vice President-Treasurer or any Assistant
Treasurer of the Company shall have prepared and delivered to the
<PAGE> 9
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Secretary of the Company for filing in the minutes of the Board of Directors,
on or before the declaration date with respect to such dividend period, a
certificate in which such officer certifies that, based upon the most recent
financial statements of the Company, as of such declaration date, the Company
had either (i) net profits for the calendar year in which such declaration date
falls and/or the preceding calendar year or (ii) surplus (as defined and
computed under Sections 154 and 244 of the Delaware General Corporation Law) in
an amount sufficient to pay such dividend.
RESOLVED, That the Company be and hereby is authorized to enter into
one or more deposit agreements and one or more supplements thereto, each with a
bank or trust company as depositary ("Deposit Agreements"), providing for the
deposit of the Preferred Stock Purchase Contracts, the Capital Units and/or the
Preferred Stock, the issuance of the Depositary Shares and other matters
relating thereto, and that the Chairman of the Board of Directors, the
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer and any Assistant Treasurer, and each of them, be and hereby are
authorized, in the name and on behalf of the Company, (i) to select such
depositary or depositaries and (ii) to execute, acknowledge and deliver Deposit
Agreements and supplements thereto, whether or not under the seal of the
Company, and whether or not attested by the Secretary or any Assistant
Secretary, containing such terms and provisions as the officer or officers
executing such Deposit Agreements or supplements thereto may deem necessary,
appropriate or desirable, as conclusively evidenced by his, her or their
execution thereof.
RESOLVED, That the Company be and hereby is authorized to enter into
one or more agreements and one or more supplements thereto, each with a bank or
trust company ("Unit Agent Agreements"), providing for the administration on
behalf of the Company of the Capital Units and/or the Preferred Stock Purchase
Contracts, including, but not limited to, issuing Capital Units, acting as a
paying and/or fiscal agent in respect of debt securities, if any, which may be
part of the Capital Units, collecting amounts from and issuing Preferred Stock
and/or Depositary Shares to holders of Preferred Stock Purchase Contracts in
accordance with the terms thereof and other matters relating to the Capital
Units and/or the Preferred Stock Purchase Contracts, and that the Chairman of
the Board of Directors, the President, any Vice President, the Secretary, any
Assistant Secretary, the Treasurer and any Assistant Treasurer, and each of
them, be and hereby are authorized, in the name and on behalf of the Company,
(i) to select such bank or trust company and (ii) to execute, acknowledge and
deliver Unit Agent Agreements and supplements thereto, whether or not under the
seal of the Company, and whether or not attested by the Secretary or any
Assistant Secretary, containing such terms and provisions as the officer or
officers executing such Unit Agent Agreements or supplements thereto may
<PAGE> 10
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deem necessary, appropriate or desirable, as conclusively evidenced by his,
her or their execution thereof.
RESOLVED, That the Company be and hereby is authorized to enter into
one or more (i) underwriting agreements, including pricing agreements pursuant
thereto, with any underwriter or underwriters designated by the proper officers
of the Company, or between the Company and any other persons, including
securities brokers and dealers, or any firm, institution or partnership acting
on behalf of themselves or itself and the several underwriters (such
underwriting agreements being herein collectively called the "Underwriting
Agreements"), providing for the sale of the Preferred Stock Purchase Contracts,
the Capital Units, the Preferred Stock and/or the Depositary Shares and/or (ii)
purchase agreements or other agreements with any person ("Purchase
Agreements"), providing for the purchase for its own account or for resale of
the Preferred Stock Purchase Contracts, the Capital Units, the Preferred Stock
and/or the Depositary Shares, and that, when such Underwriting Agreements or
pricing agreements pursuant thereto, or Purchase Agreements, or any of them,
have been completed to set forth the price or prices, or the method of
determining the price or prices, at and the terms and conditions upon which the
Preferred Stock Purchase Contracts, the Capital Units, the Preferred Stock
and/or the Depositary Shares are to be sold and the compensation to be received
by any underwriters (such matters first having been presented to and approved
by the Certificate of Designations Committee), the Chairman of the Board of
Directors, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer and any Assistant Treasurer, and each of them, be and
hereby are authorized to execute and deliver, in the name and on behalf of the
Company, the respective Underwriting Agreements and pricing agreements pursuant
thereto, with the inclusion of such underwriters, or the respective Purchase
Agreements and containing such other terms and provisions as the officer or
officers executing the same may deem necessary, appropriate or desirable, as
conclusively evidenced by his, her or their execution thereof.
RESOLVED, That, when shares of Preferred Stock and, if such shares of
Preferred Stock are represented by Depositary Shares, the Depositary Shares
shall be issued, sold and delivered in accordance with the terms of any
Preferred Stock Purchase Contract, Capital Unit, Deposit Agreement and any
Underwriting Agreement or Purchase Agreement, such shares of Preferred Stock
shall be, and are hereby declared to be, fully-paid and non-assessable shares
of Preferred Stock of the Company and not liable to any further calls or
assessments thereon, and the holders thereof shall not be liable for any
further payment in respect thereof.
RESOLVED, That, upon the issuance and sale of the Preferred Stock and
any Depositary Shares in accordance with the foregoing resolutions, an amount
equal to the par value of the Preferred Stock so issued shall be credited to
the capital stock account of the Company.
<PAGE> 11
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RESOLVED, That the appropriate officers of the Company, and each of
them, be and hereby are authorized and empowered, in the name and on behalf of
the Company, to take any action (including, without limitation, the appointment
of agents and the payment of expenses), and to execute (by manual or facsimile
signature) and deliver any and all letters, documents or other writings, that
such officer or officers may deem necessary, appropriate or desirable in order
to enable the Company fully to exercise its rights and to perform its
obligations under the Underwriting Agreements and pricing agreements pursuant
thereto, Purchase Agreements or Deposit Agreements or otherwise carry out the
purposes and intents of each and all of the foregoing resolutions.
EFFECT ON OTHER RESOLUTIONS
RESOLVED, that the foregoing resolutions under the heading "Resolutions
Relating to Issuance of Preferred Stock" supersede the resolutions under the
heading "Resolutions Relating to Issuance of Preferred Stock" adopted by the
Board of Directors of the Company at a meeting held on November 23, 1993, which
amended, in part, those certain resolutions adopted by the Board of Directors
of the Company by unanimous written consent dated February 12, 1992 (the "1992
Resolutions"), and the 1992 Resolutions, as amended hereby, shall remain in
full force and effect.
RESOLVED, That the Secretary or any Assistant Secretary of the Company
shall modify the language of each and all of the foregoing resolutions to the
extent necessary to reflect fully the intents and purposes thereof, and any
such resolution, as so modified, shall be deemed to have been adopted by the
Board of Directors in such modified form.
<PAGE> 12
POWER OF ATTORNEY WITH RESPECT
TO REGISTRATION STATEMENT COVERING
DEBT SECURITIES, PREFERRED STOCK AND
DEPOSITARY SHARES OF FORD HOLDINGS, INC.
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned, an officer
and/or director of FORD HOLDINGS, INC., does hereby constitute and appoint S.
A. Seneker, D. N. McCammon, M. S. Macdonald, J. W. Martin, Jr., F. B. Kulp, J.
M. Rintamaki, L. J. Ghilardi, T. J. DeZure, P. J. Sherry, Jr., P. M. Donnelly
and K. S. Lamping, and each of them, severally, his true and lawful attorney
and agent at any time and from time to time to do any and all acts and things
and execute, in his name (whether on behalf of FORD HOLDINGS, INC., or as an
officer or director of FORD HOLDINGS, INC., or by attesting the seal of FORD
HOLDINGS, INC., or otherwise), any and all instruments which said attorney and
agent may deem necessary or advisable in order to enable FORD HOLDINGS, INC. to
comply with the Securities Act of 1933, the Securities Exchange Act of 1934 and
any requirements of the Securities and Exchange Commission in respect thereof,
in connection with a Registration Statement or Registration Statements and any
and all amendments (including post-effective amendments) to the Registration
Statement or Registration Statements relating to the issuance and sale of Debt
Securities, Preferred Stock and any Depositary Shares representing such
Preferred Stock, Preferred Stock Purchase Contracts and/or Capital Units of the
Company, as authorized by the Board of Directors of FORD HOLDINGS, INC. by
unanimous written consents dated February 12, 1992 and August 18, 1994,
including specifically but without limitation thereto, power and authority to
sign his name (whether on behalf of FORD HOLDINGS, INC., or as an officer or
director of FORD HOLDINGS, INC., or by attesting the seal of FORD HOLDINGS,
INC., or otherwise) to such Registration Statement or Registration Statements
and to such amendments (including post-effective amendments) to the
Registration Statement or Registration Statements to be filed with the
Securities and Exchange Commission, or any of the exhibits, financial
statements and schedules, or the Prospectuses, filed therewith, and to file the
same with the Securities and Exchange Commission; and each of the undersigned
does hereby ratify and confirm all that said attorneys and agents, and each of
them, shall do or cause to be done by virtue hereof. Any one of said attorneys
and agents shall have, and may exercise, all the powers hereby conferred.
IN WITNESS WHEREOF, each of the undersigned has signed his name hereto
as of the 18th day of August, 1994.
/s/W. F. Blood
(W. F. Blood)
/s/M. S. Macdonald
(M. S. Macdonald)
<PAGE> 13
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/s/T. F. Marrs
(T. F. Marrs)
/s/D. N. McCammon
(D. N. McCammon)
/s/D. E. Richardson
(D. E. Richardson)
/s/S. A. Seneker
(S. A. Seneker)
/s/H. J. Toffey, Jr.
(H. J. Toffey, Jr.)
/s/K. Whipple
(K. Whipple)
