SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM 8-K
Current Report
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 11, 1995
General Mills, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
1-1185 41-0274440
Commission File Number (IRS Employer Identification No.)
Number One General Mills Boulevard
Minneapolis, Minnesota 55426
(Mail: P.O. Box 1113) (Mail: 55440)
(Address of principal executive offices) (Zip Code)
(612) 540-2311
Registrant's Telephone Number
Item 5. Other Events.
On December 11, 1995, the Board of Directors of
General Mills, Inc. (the "Company") declared a dividend of
one preference share purchase right (a "Right") for each
outstanding share of common stock, par value $.10 per share
(the "Common Shares"), of the Company. The dividend is
payable on February 1, 1996 to stockholders of record on
January 10, 1996 (the "Record Date"). Each Right entitles
the registered holder to purchase from the Company one one-
hundredth of a share of Series B Participating Cumulative
Preference Stock, without par value (the "Preference
Shares"), of the Company at a price of $240 per one one-
hundredth of a Preference Share (the "Purchase Price"),
subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement dated as of
December 11, 1995 (the "Rights Agreement") between the
Company and Norwest Bank Minnesota, N.A., as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired
beneficial ownership of 20% or more of the outstanding
Common Shares or (ii) 10 business days (or such later date
as may be determined by action of the Board of Directors
prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or
group of 20% or more of the outstanding Common Shares (the
earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced, with respect to any of the
Common Share certificates outstanding as of the Record Date,
by such Common Share certificate with a copy of a Summary of
Rights attached thereto.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of
the Rights), the Rights will be transferred with and only
with the Common Shares. Until the Distribution Date (or
earlier redemption or expiration of the Rights), new Common
Share certificates issued after the Record Date upon
transfer or new issuance of Common Shares will contain a
notation incorporating the Rights Agreement by reference.
Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record
Date, even without such notation or a copy of the Summary of
Rights being attached thereto, will also constitute the
transfer of the Rights associated with the Common Shares
represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed
to holders of record of the Common Shares as of the close of
business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on February 1, 2006 (the
"Final Expiration Date"), unless the Final Expiration Date
is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of
Preference Shares or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Preference Shares, (ii) upon the
grant to holders of the Preference Shares of certain rights
or warrants to subscribe for or purchase Preference Shares
at a price, or securities convertible into Preference Shares
with a conversion price, less than the then-current market
price of the Preference Shares or (iii) upon the
distribution to holders of the Preference Shares of
evidences of indebtedness or assets (excluding regular
periodic cash dividends paid out of earnings or retained
earnings or dividends payable in Preference Shares) or of
subscription rights or warrants (other than those referred
to above).
The number of outstanding Rights and the number of
one one-hundredths of a Preference Share issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common
Shares occurring, in any such case, prior to the
Distribution Date.
Preference Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preference Share will
be entitled to a minimum preferential quarterly dividend
payment of $10 per share but will be entitled to an
aggregate dividend of 100 times the dividend declared per
Common Share. In the event of liquidation, the holders of
the Preference Shares will be entitled to a minimum
preferential liquidation payment of $100 per share but will
be entitled to an aggregate payment of 100 times the payment
made per Common Share. Each Preference Share will have 100
votes, voting together with the Common Shares. Finally, in
the event of any merger, consolidation or other transaction
in which Common Shares are exchanged, each Preference Share
will be entitled to receive 100 times the amount received
per Common Share. These rights are protected by customary
antidilution provisions.
Because of the nature of the Preference Shares'
dividend, liquidation and voting rights, the value of the
one one-hundredth interest in a Preference Share purchasable
upon exercise of each Right should approximate the value of
one Common Share.
In the event that the Company is acquired in a merger
or other business combination transaction or 50% or more of
its consolidated assets or earning power are sold after a
person or group has become an Acquiring Person, proper
provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right,
that number of shares of common stock of the acquiring
company which at the time of such transaction will have a
market value of two times the exercise price of the Right.
In the event that any person or group of affiliated or
associated persons becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the
right to receive upon exercise that number of Common Shares
having a market value at the time of such occurrence of two
times the exercise price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Shares,
the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such person or group
which will have become void), in whole or in part, at an
exchange ratio of one Common Share, or one one-hundredth of
a Preference Share, per Right (subject to adjustment).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price.
No fractional Preference Shares will be issued (other than
fractions which are integral multiples of one one-hundredth
of a Preference Share, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu
thereof, an adjustment in cash will be made based on the
market price of the Preference Shares on the last trading
day prior to the date of exercise.
At any time prior to the acquisition by a person or
group of affiliated or associated persons of beneficial
ownership of 20% or more of the outstanding Common Shares,
the Board of Directors of the Company may redeem the Rights
in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"). The redemption of the Rights may be
made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion
may establish. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive
the Redemption Price.
The terms of the Rights may be amended by the Board
of Directors of the Company without the consent of the
holders of the Rights, including an amendment to lower
certain thresholds described above to not less than the
greater of (i) the sum of .001% and the largest percentage
of the outstanding Common Shares then known to the Company
to be beneficially owned by any person or group of
affiliated or associated persons and (ii) 10%, except that
from and after such time as any person or group of
affiliated or associated persons becomes an Acquiring
Person, no such amendment may adversely affect the interests
of the holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends.
The Rights Agreement and form of press release
announcing the declaration of the Rights are attached hereto
as exhibits and are incorporated herein by reference. The
foregoing description of the Rights is qualified in its
entirety by reference to such exhibits.
Also on December 11, 1995, the Board of Directors of
the Company approved amendments to the Company's By-Laws and
approved a new form of Management Continuity Agreement for
seven executives of the Company who were not previously
parties to Management Continuity Agreements with the
Company. The new form will also apply to the five
executives who are currently parties to Management
Continuity Agreements with the Company, at the expiration of
their existing agreements. The full text of the Company's
By-Laws, as amended, and the new form of Management
Continuity Agreement are attached hereto as exhibits and are
incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
(c) Exhibits.
1. Rights Agreement, dated as of December 11,
1995, between General Mills, Inc. and
Norwest Bank Minnesota, N.A., as Rights
Agent.
2. Form of press release dated December 11,
1995.
3. By-Laws, as amended through December 11,
1995.
4. Form of Management Continuity Agreement.
SIGNATURE
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
GENERAL MILLS, INC.
By: /s/ Siri S. Marshall
Name: Siri S. Marshall
Title: Senior Vice President,
General Counsel and
Secretary
Dated: December 18, 1995
EXHIBIT LIST
Exhibit Description
1. Rights Agreement, dated as of December 11,
1995, between General Mills, Inc. and Norwest
Bank Minnesota, N.A., as Rights Agent.
2. Form of press release dated December 11, 1995.
3. By-Laws, as amended through December 11, 1995.
4. Form of Management Continuity Agreement.
GENERAL MILLS, INC.
and
NORWEST BANK MINNESOTA, N.A.
Rights Agent
Rights Agreement
Dated as of December 11, 1995
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 7
Section 3. Issue of Right Certificates 7
Section 4. Form of Right Certificates 11
Section 5. Countersignature and Registration 12
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates 13
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights 15
Section 8. Cancellation and Destruction of
Right Certificates 18
Section 9. Availability of Common Shares 18
Section 10. Preference Shares Record Date 20
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights 20
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares 36
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power 36
Section 14. Fractional Rights and Fractional Shares 39
Section 15. Rights of Action 41
Section 16. Agreement of Right Holders 42
Section 17. Right Certificate Holder Not Deemed a
Stockholder 43
Section 18. Concerning the Rights Agent 44
Section 19. Merger or Consolidation or Change of
Name of Rights Agent 45
Section 20. Duties of Rights Agent 46
Section 21. Change of Rights Agent 50
Section 22. Issuance of New Right Certificates 53
Section 23. Redemption 53
Section 24. Exchange 54
Section 25. Notice of Certain Events 57
Section 26. Notices 59
Section 27. Supplements and Amendments 60
Section 28. Successors 61
Section 29. Benefits of this Agreement 62
Section 30. Severability 62
Section 31. Governing Law 62
Section 32. Counterparts 63
Section 33. Descriptive Headings 63
Signatures 63
Exhibit A - Form of Certificate of Designation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preference
Shares
Agreement, dated as of December 11, 1995, between
General Mills, Inc., a Delaware corporation (the "Company"), and
Norwest Bank Minnesota, N.A. (the "Rights Agent").
The Board of Directors of the Company has authorized
and declared a dividend of one Preference Share purchase right
(a "Right") for each Common Share (as hereinafter defined) of
the Company outstanding on January 10, 1996 (the "Record
Date"), each Right representing the right to purchase one one-
hundredth of a Preference Share (as hereinafter defined), upon
the terms and subject to the conditions herein set forth, and
has further authorized and directed the issuance of one Right
with respect to each Common Share that shall become outstanding
between the Record Date and the earliest of the Distribution
Date, the Redemption Date and the Final Expiration Date (as
such terms are hereinafter defined).
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of
this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person (as
such term is hereinafter defined) who or which, together with
all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such
term is hereinafter defined) of 20% or more of the Common
Shares of the Company then outstanding, but shall not include
the Company, any Subsidiary (as such term is hereinafter
defined) of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common
Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 20% or more of the Common
Shares of the Company then outstanding; provided, however, that
if a Person shall become the Beneficial Owner of 20% or more of
the Common Shares of the Company then outstanding by reason of
share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person shall
be deemed to be an "Acquiring Person". Notwithstanding the
foregoing, if the Board of Directors of the Company determines
in good faith that a Person who would otherwise be an
"Acquiring Person", as defined pursuant to the foregoing
provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that such
Person would no longer be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed to be an "Acquiring
Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the
date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner"
of and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary
agreements with and between underwriters and selling group
members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights,
exchange rights, rights (other than these Rights),
warrants or options, or otherwise; provided, however, that
a Person shall not be deemed the Beneficial Owner of, or
to beneficially own, securities tendered pursuant to a
tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase
or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided,
further, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy
or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the
proviso to Section 1(c)(ii)(B)) or disposing of any
securities of the Company.
Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, the phrase "then
outstanding," when used with reference to a Person's Beneficial
Ownership of securities of the Company, shall mean the number
of such securities then issued and outstanding together with
the number of such securities not then actually issued and
outstanding which such Person would be deemed to own
beneficially hereunder.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in
the State of the principal office of the Rights Agent are
authorized or obligated by law or executive order to close.
(e) "Close of business" on any given date shall mean
5:00 P.M., local time in the State of the principal office of
the Rights Agent, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., local time
in the State of the principal office of the Rights Agent, on
the next succeeding Business Day.
(f) "Common Shares" when used with reference to the
Company shall mean the shares of common stock, par value $.10
per share, of the Company. "Common Shares" when used with
reference to any Person other than the Company shall mean the
capital stock (or equity interest) with the greatest voting
power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(h) "Final Expiration Date" shall have the meaning
set forth in Section 7 hereof.
(i) "Person" shall mean any individual, firm,
corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
(j) "Preference Shares" shall mean shares of
Series B Participating Cumulative Preference Stock, without par
value, of the Company.
(k) "Redemption Date" shall have the meaning set
forth in Section 7 hereof.
(l) "Shares Acquisition Date" shall mean the first
date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such.
(m) "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the voting
power of the voting equity securities or equity interest is
owned, directly or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance with
Section 3 hereof, shall prior to the Distribution Date also be
the holders of the Common Shares) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until
the earlier of (i) the tenth day after the Shares Acquisition
Date or (ii) the tenth business day (or such later date as may
be determined by action of the Board of Directors prior to such
time as any Person becomes an Acquiring Person) after the date
of the commencement by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity
holding Common Shares for or pursuant to the terms of any such
plan) of, or of the first public announcement of the intention
of any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares
for or pursuant to the terms of any such plan) to commence, a
tender or exchange offer the consummation of which would result
in any Person becoming the Beneficial Owner of Common Shares
aggregating 20% or more of the then outstanding Common Shares
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights; the earlier
of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares. As soon
as practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent
will, if requested, send) by first-class, postage- prepaid
mail, to each record holder of Common Shares as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right for each Common
Share so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) On or about February 1, 1996, or as promptly as
reasonably practicable thereafter, the Company will send a copy
of a Summary of Rights to Purchase Preference Shares, in
substantially the form of Exhibit C hereto (the "Summary of
Rights"), by postage- prepaid mail, to each record holder of
Common Shares as of the close of business on the Record Date,
at the address of such holder shown on the records of the
Company. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date,
the Rights will be evidenced by such certificates registered in
the names of the holders thereof together with a copy of the
Summary of Rights attached thereto. Until the Distribution
Date (or the earlier of the Redemption Date or the Final
Expiration Date), the surrender for transfer of any certificate
for Common Shares outstanding on the Record Date, with or
without a copy of the Summary of Rights attached thereto, shall
also constitute the transfer of the Rights associated with the
Common Shares represented thereby.
(c) Certificates for Common Shares which become
outstanding (including, without limitation, reacquired Common
Shares referred to in the last sentence of this paragraph (c))
after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights
Agreement between General Mills, Inc. (the "Company") and
Norwest Bank Minnesota, N.A. (the "Rights Agent"), dated
as of December 11, 1995 (as amended from time to time, the
"Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on
file at the principal offices of the Company. Under
certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect
on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes
an Acquiring Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement),
whether currently held by or on behalf of such Person or
by any subsequent holder, may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases
or acquires any Common Shares after the Record Date but prior
to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that the
Company shall not be entitled to exercise any Rights associated
with the Common Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preference
Shares and of assignment to be printed on the reverse thereof)
shall be substantially in the form set forth in Exhibit B
hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-hundredths
of a Preference Share as shall be set forth therein at the
price per one one-hundredth of a Preference Share set forth
therein (the "Purchase Price"), but the number of such one one-
hundredths of a Preference Share or other securities
purchasable and the Purchase Price shall be subject to
adjustment as provided herein.
Section 5. Countersignature and Registration. (a)
The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive
Officer, its President, or any of its Vice Presidents, either
manually or by facsimile signature, shall have affixed thereto
the Company's seal or a facsimile thereof, and shall be
attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent, either
manually or by facsimile signature, and shall not be valid for
any purpose unless so countersigned. In case any officer of
the Company who shall have signed any of the Right Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery
by the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by
the Company with the same force and effect as though the person
who signed such Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed
on behalf of the Company by any person who, at the actual date
of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although
at the date of the execution of this Rights Agreement any such
person was not such an officer.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at its principal office,
books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates,
the number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates. (a) Subject to the provisions of
Section 14 hereof, at any time after the close of business on
the Distribution Date, and at or prior to the close of business
on the earlier of the Redemption Date or the Final Expiration
Date, any Right Certificate or Right Certificates (other than
Right Certificates representing Rights that have become void
pursuant to Section 11(a)(ii) hereof or that have been
exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Right Certificate
or Right Certificates, entitling the registered holder to
purchase a like number of one one- hundredths of a Preference
Share as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make
such request in writing delivered to the Rights Agent, and
shall surrender the Right Certificate or Right Certificates to
be transferred, split up, combined or exchanged at the
principal office of the Rights Agent. Thereupon the Rights
Agent shall countersign and deliver to the person entitled
thereto a Right Certificate or Right Certificates, as the case
may be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to
the Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will execute and deliver a new Right
Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered holder in lieu
of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) The registered holder of any
Right Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at
any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase on the
reverse side thereof duly executed, to the Rights Agent at the
principal office of the Rights Agent, together with payment of
the Purchase Price for each one one-hundredth of a Preference
Share as to which the Rights are exercised, at or prior to the
earliest of (i) the close of business on February 1, 2006 (the
"Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption
Date"), or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price for each one one-hundredth of
a Preference Share purchasable pursuant to the exercise of a
Right shall initially be $240, and shall be subject to
adjustment from time to time as provided in Section 11 or 13
hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof, the Rights
Agent shall thereupon promptly (i) (A) requisition from any
transfer agent of the Preference Shares certificates for the
number of Preference Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with
all such requests, or (B) requisition from the depositary agent
depositary receipts representing such number of one one-
hundredths of a Preference Share as are to be purchased (in
which case certificates for the Preference Shares represented
by such receipts shall be deposited by the transfer agent with
the depositary agent) and the Company hereby directs the
depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash to
be paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) after receipt of such
certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after
receipt, deliver such cash to or upon the order of the
registered holder of such Right Certificate. The payment of
the Purchase Price may be made (x) in cash or by certified bank
check or bank draft payable to the order of the Company, or (y)
by delivery of a certificate or certificates (with appropriate
stock powers executed in blank attached thereto) evidencing a
number of Common Shares equal to the then Purchase Price
divided by the current market price (as determined pursuant to
Section 11(d) hereof) per Common Share on the date of such
exercise. In the event that the Company is obligated to issue
other securities (including Common Shares) of the Company
pursuant to Section 11(a) hereof, the Company will make all
arrangements necessary so that such other securities are
available for distribution by the Rights Agent, if and when
appropriate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the
Rights Agent to the registered holder of such Right Certificate
or to such holder's duly authorized assigns, subject to the
provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in
cancelled form, or, if surrendered to the Rights Agent, shall
be cancelled by it, and no Right Certificates shall be issued
in lieu thereof except as expressly permitted by any of the
provisions of this Rights Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and the
Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all
cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Availability of Preference Shares. The
Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued
Preference Shares or any Preference Shares held in its
treasury, the number of Preference Shares that will be
sufficient to permit the exercise in full of all outstanding
Rights in accordance with Section 7. The Company covenants and
agrees that it will take all such action as may be necessary to
ensure that all Preference Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for
such Preference Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully
paid and nonassessable shares.
The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer
taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any
Preference Shares upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax which
may be payable in respect of any transfer or delivery of Right
Certificates to a person other than, or the issuance or
delivery of certificates or depositary receipts for the
Preference Shares in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or to deliver any certificates or
depositary receipts for Preference Shares upon the exercise of
any Rights until any such tax shall have been paid (any such
tax being payable by the holder of such Right Certificate at
the time of surrender) or until it has been established to the
Company's reasonable satisfaction that no such tax is due.
Section 10. Preference Shares Record Date. Each
person in whose name any certificate for Preference Shares is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Preference
Shares represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a
date upon which the Preference Shares transfer books of the
Company are closed, such person shall be deemed to have become
the record holder of such shares on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preference Shares transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the
holder of a Right Certificate shall not be entitled to any
rights of a holder of Preference Shares for which the Rights
shall be exercisable, including, without limitation, the right
to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights. The Purchase Price, the number and
kind of Preference Shares or other shares covered by each Right
and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on the
Preference Shares payable in Preference Shares, (B) subdivide
the outstanding Preference Shares, (C) combine the outstanding
Preference Shares into a smaller number of Preference Shares or
(D) issue any shares of its capital stock in a reclassification
of the Preference Shares (including any such reclassification
in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in
effect at the time of the record date for such dividend or of
the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital
stock issuable on such date, shall be proportionately adjusted
so that the holder of any Right exercised after such time shall
be entitled to receive the aggregate number and kind of shares
of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the
Preference Shares transfer books of the Company were open, such
holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of
the Company issuable upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement, in the
event any Person becomes an Acquiring Person, each holder of a
Right shall thereafter have a right to receive, upon exercise
thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-hundredths of a Preference
Share for which the Right is then exercisable, in accordance
with the terms of this Agreement and in lieu of Preference
Shares, such number of Common Shares of the Company as shall
equal the result obtained by (x) multiplying the then current
Purchase Price by the number of one one-hundredths of a
Preference Share for which a Right is then exercisable and
dividing that product by (y) 50% of the then current per share
market price of the Company's Common Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence
of such event. In the event that any Person shall become an
Acquiring Person and the Rights shall then be outstanding, the
Company shall not take any action which would eliminate or
diminish the benefits intended to be afforded by the Rights.
From and after the occurrence of such event, any
Rights that are or were acquired or beneficially owned by any
Acquiring Person (or any Associate or Affiliate of such
Acquiring Person) shall be void and any holder of such Rights
shall thereafter have no right to exercise such Rights under
any provision of this Agreement. No Right Certificate shall be
issued pursuant to Section 3 that represents Rights
beneficially owned by an Acquiring Person whose Rights would be
void pursuant to the preceding sentence or any Associate or
Affiliate thereof; no Right Certificate shall be issued at any
time upon the transfer of any Rights to an Acquiring Person
whose Rights would be void pursuant to the preceding sentence
or any Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the
preceding sentence shall be cancelled.
(iii) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Company
shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the
Rights. In the event the Company shall, after good faith
effort, be unable to take all such action as may be necessary
to authorize such additional Common Shares, the Company shall
substitute, for each Common Share that would otherwise be
issuable upon exercise of a Right, a number of Preference
Shares or fraction thereof such that the current per share
market price of one Preference Share multiplied by such number
or fraction is equal to the current per share market price of
one Common Share as of the date of issuance of such Preference
Shares or fraction thereof.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of
Preference Shares entitling them (for a period expiring within
45 calendar days after such record date) to subscribe for or
purchase Preference Shares (or shares having the same rights,
privileges and preferences as the Preference Shares
("equivalent preference shares")) or securities convertible
into Preference Shares or equivalent preference shares at a
price per Preference Share or equivalent preference share (or
having a conversion price per share, if a security convertible
into Preference Shares or equivalent preference shares) less
than the then current per share market price of the Preference
Shares (as defined in Section 11(d)) on such record date, the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of Preference Shares
outstanding on such record date plus the number of Preference
Shares which the aggregate offering price of the total number
of Preference Shares and/or equivalent preference shares so to
be offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase at
such current market price and the denominator of which shall be
the number of Preference Shares outstanding on such record date
plus the number of additional Preference Shares and/or
equivalent preference shares to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in
no event shall the consideration to be paid upon the exercise
of one Right be less than the aggregate par value of the shares
of capital stock of the Company issuable upon exercise of one
Right. In case such subscription price may be paid in a
consideration part or all of which shall be in a form other
than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement
filed with the Rights Agent. Preference Shares owned by or
held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Company shall fix a record date for
the making of a distribution to all holders of the Preference
Shares (including any such distribution made in connection with
a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preference Shares) or
subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the then current
per share market price of the Preference Shares on such record
date, less the fair market value (as determined in good faith
by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent)
of the portion of the assets or evidences of indebtedness so to
be distributed or of such subscription rights or warrants
applicable to one Preference Share and the denominator of which
shall be such current per share market price of the Preference
Shares; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of
the Company to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not
so made, the Purchase Price shall again be adjusted to be the
Purchase Price which would then be in effect if such record
date had not been fixed.
(d) (i) For the purpose of any computation
hereunder, the "current per share market price" of any security
(a "Security" for the purpose of this Section 11(d)(i)) on any
date shall be deemed to be the average of the daily closing
prices per share of such Security for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that in the event that
the current per share market price of the Security is
determined during a period following the announcement by the
issuer of such Security of (A) a dividend or distribution on
such Security payable in shares of such Security or securities
convertible into such shares, or (B) any subdivision,
combination or reclassification of such Security and prior to
the expiration of 30 Trading Days after the ex-dividend date
for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each
such case, the current per share market price shall be
appropriately adjusted to reflect the current market price per
share equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported
in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the Security is not listed or
admitted to trading on the New York Stock Exchange, as reported
in the principal consolidated transaction reporting system with
respect to securities listed on the principal national
securities exchange on which the Security is listed or admitted
to trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use,
or, if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in
the Security selected by the Board of Directors of the Company.
The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Security is listed or
admitted to trading is open for the transaction of business or,
if the Security is not listed or admitted to trading on any
national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder,
the "current per share market price" of the Preference Shares
shall be determined in accordance with the method set forth in
Section 11(d)(i). If the Preference Shares are not publicly
traded, the "current per share market price" of the Preference
Shares shall be conclusively deemed to be the current per share
market price of the Common Shares as determined pursuant to
Section 11(d)(i) (appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after
the date hereof), multiplied by one hundred. If neither the
Common Shares nor the Preference Shares are publicly held or so
listed or traded, "current per share market price" shall mean
the fair value per share as determined in good faith by the
Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest
cent or to the nearest one one-millionth of a Preference Share
or one ten-thousandth of any other share or security as the
case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three years from the
date of the transaction which requires such adjustment or (ii)
the date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than Preference Shares,
thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preference
Shares contained in Section 11(a) through (c), inclusive, and
the provisions of Sections 7, 9, 10 and 13 with respect to the
Preference Shares shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one- hundredths of a
Preference Share purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-hundredths of a Preference Share
(calculated to the nearest one one-millionth of a Preference
Share) obtained by (i) multiplying (x) the number of one one-
hundredths of a share covered by a Right immediately prior to
this adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in
effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of one
one-hundredths of a Preference Share purchasable upon the
exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths of a Preference Share for which a
Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated
to the nearest one ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make
a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates
have been issued, shall be at least 10 days later than the date
of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant
to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights
to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Right Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-hundredths of a
Preference Share issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one
one-hundredths of a Preference Share which were expressed in
the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-
hundredth of the then par value, if any, of the Preference
Shares issuable upon exercise of the Rights, the Company shall
take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable Preference Shares at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event
the issuing to the holder of any Right exercised after such
record date of the Preference Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise
over and above the Preference Shares and other capital stock or
securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver
to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional
shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the
Preference Shares, issuance wholly for cash of any Preference
Shares at less than the current market price, issuance wholly
for cash of Preference Shares or securities which by their
terms are convertible into or exchangeable for Preference
Shares, dividends on Preference Shares payable in Preference
Shares or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to
holders of its Preference Shares shall not be taxable to such
stockholders.
(n) In the event that at any time after the date of
this Agreement and prior to the Distribution Date, the Company
shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in
Common Shares) into a greater or lesser number of Common
Shares, then in any such case (A) the number of one one-
hundredths of a Preference Share purchasable after such event
upon proper exercise of each Right shall be determined by
multiplying the number of one one-hundredths of a Preference
Share so purchasable immediately prior to such event by a
fraction, the numerator of which is the number of Common Shares
outstanding immediately before such event and the denominator
of which is the number of Common Shares outstanding immediately
after such event, and (B) each Common Share outstanding
immediately after such event shall have issued with respect to
it that number of Rights which each Common Share outstanding
immediately prior to such event had issued with respect to it.
The adjustments provided for in this Section 11(n) shall be
made successively whenever such a dividend is declared or paid
or such a subdivision, combination or consolidation is
effected.
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares. Whenever an adjustment is made as
provided in Section 11 or 13 hereof, the Company shall promptly
(a) prepare a certificate setting forth such adjustment, and a
brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent for
the Common Shares or the Preference Shares a copy of such
certificate and (c) subject to Section 25(c), mail a brief
summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power. In the event, directly or
indirectly, at any time after a Person has become an Acquiring
Person, (a) the Company shall consolidate with, or merge with
and into, any other Person, (b) any Person shall consolidate
with the Company, or merge with and into the Company and the
Company shall be the continuing or surviving corporation of
such merger and, in connection with such merger, all or part of
the Common Shares shall be changed into or exchanged for stock
or other securities of any other Person (or the Company) or
cash or any other property, or (c) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one or more transactions,
assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person other than the Company or one or
more of its wholly-owned Subsidiaries, then, and in each such
case, proper provision shall be made so that (i) each holder of
a Right (except as otherwise provided herein) shall thereafter
have the right to receive, upon the exercise thereof at a price
equal to the then current Purchase Price multiplied by the
number of one one-hundredths of a Preference Share for which a
Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preference Shares, such number of
Common Shares of such other Person (including the Company as
successor thereto or as the surviving corporation) as shall
equal the result obtained by (A) multiplying the then current
Purchase Price by the number of one one-hundredths of a
Preference Share for which a Right is then exercisable and
dividing that product by (B) 50% of the then current per share
market price of the Common Shares of such other Person
(determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Shares shall thereafter be
liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer; and (iv)
such issuer shall take such steps (including, but not limited
to, the reservation of a sufficient number of its Common Shares
in accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable
upon the exercise of the Rights. The Company shall not
consummate any such consolidation, merger, sale or transfer
unless prior thereto the Company and such issuer shall have
executed and delivered to the Rights Agent a supplemental
agreement so providing. The Company shall not enter into any
transaction of the kind referred to in this Section 13 if at
the time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such
transaction, would eliminate or substantially diminish the
benefits intended to be afforded by the Rights. The provisions
of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, there
shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the
purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price for any day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated
transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if
the Rights are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed
on the principal national securities exchange on which the
Rights are listed or admitted to trading or, if the Rights are
not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-
counter market, as reported by NASDAQ or such other system then
in use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Rights selected by the Board of Directors of the
Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date
as determined in good faith by the Board of Directors of the
Company shall be used.
(b) The Company shall not be required to issue
fractions of Preference Shares (other than fractions which are
integral multiples of one one-hundredth of a Preference Share)
upon exercise of the Rights or to distribute certificates which
evidence fractional Preference Shares (other than fractions
which are integral multiples of one one-hundredth of a
Preference Share). Fractions of Preference Shares in integral
multiples of one one-hundredth of a Preference Share may, at
the election of the Company, be evidenced by depositary
receipts, pursuant to an appropriate agreement between the
Company and a depositary selected by it; provided, that such
agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences
to which they are entitled as beneficial owners of the
Preference Shares represented by such depositary receipts. In
lieu of fractional Preference Shares that are not integral
multiples of one one-hundredth of a Preference Share, the
Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one Preference Share. For the purposes
of this Section 14(b), the current market value of a Preference
Share shall be the closing price of a Preference Share (as
determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) The holder of a Right by the acceptance of the
Right expressly waives such holder's right to receive any
fractional Rights or any fractional shares upon exercise of a
Right (except as provided above).
Section 15. Rights of Action. All rights of action
in respect of this Agreement, excepting the rights of action
given to the Rights Agent under Section 18 hereof, are vested
in the respective registered holders of the Right Certificates
(and, prior to the Distribution Date, the registered holders of
the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the
holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in such holder's
own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against
the Company to enforce, or otherwise act in respect of, such
holder's right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right Certificate
and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations
under, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this
Agreement.
Section 16. Agreement of Right Holders. Every
holder of a Right, by accepting the same, consents and agrees
with the Company and the Rights Agent and with every other
holder of a Right that:
(a) prior to the Distribution Date, the Rights will
be transferable only in connection with the transfer of the
Common Shares;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office of the
Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer; and
(c) the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, prior
to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificate or the associated
Common Shares certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent shall be affected by any
notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the Preference Shares or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate,
as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting stockholders
(except as provided in Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right
or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The
Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense,
incurred without negligence, bad faith or willful misconduct on
the part of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the
premises.
The Rights Agent shall be protected and shall incur
no liability for, or in respect of any action taken, suffered
or omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
for the Preference Shares or Common Shares or for other
securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons, or otherwise
upon the advice of counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of
Name of Rights Agent. Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with which
it may be consolidated, or any corporation resulting from any
merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or corporate trust business of
the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part
of any of the parties hereto; provided, that such corporation
would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created
by this Agreement, any of the Right Certificates shall have
been countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and
in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have
the full force provided in the Right Certificates and in this
Agreement.
In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights
Agent may adopt the countersignature under its prior name and
deliver Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name;
and in all such cases such Right Certificates shall have the
full force provided in the Right Certificates and in this
Agreement.
Section 20. Duties of Rights Agent. The Rights
Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Company and the holders of Right Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by
the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by
any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, or the Secretary of
the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to
the Company and any other Person only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this
Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to
Section 11(a)(ii) hereof) or any adjustment in the terms of the
Rights (including the manner, method or amount thereof)
provided for in Section 3, 11, 13, 23 or 24, or the
ascertaining of the existence of facts that would require any
such change or adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after actual notice
that such change or adjustment is required); nor shall it by
any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
Preference Shares to be issued pursuant to this Agreement or
any Right Certificate or as to whether any Preference Shares
will, when issued, be validly authorized and issued, fully paid
and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the performance
of its duties hereunder from any one of the Chairman of the
Board, the Chief Executive Officer, the President, any Vice
President or the Secretary of the Company, and to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered by it in good faith in accordance with instructions of
any such officer or for any delay in acting while waiting for
those instructions.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal
in any of the Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to
the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
Section 21. Change of Rights Agent. The Rights
Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days'
notice in writing mailed to the Company and to each transfer
agent of the Common Shares or Preference Shares by registered
or certified mail, and to the holders of the Right Certificates
by first-class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the
case may be, and to each transfer agent of the Common Shares or
Preference Shares by registered or certified mail, and, after
the Distribution Date, to the holders of the Right Certificates
by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
30 days after giving notice of such removal or after it has
been notified in writing of such resignation or incapacity by
the resigning or incapacitated Rights Agent or by the holder of
a Right Certificate (who shall, with such notice, submit his
Right Certificate for inspection by the Company), then the
registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be a corporation
organized and doing business under the laws of the United
States or of any other state of the United States so long as
such corporation is authorized to do business as a banking
institution in the State of Minnesota or New York, in good
standing, having an office in the State of Minnesota or New
York, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or
examination by federal or state authority, or which is a
Subsidiary of such banking institution, and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $100 million. After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed;
but the predecessor Rights Agent shall deliver and transfer to
the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Shares or
Preference Shares, and, after the Distribution Date, mail a
notice thereof in writing to the registered holders of the
Right Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of
the Rights to the contrary, the Company may, at its option,
issue new Right Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property
purchasable under the Right Certificates made in accordance
with the provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors
of the Company may, at its option, at any time prior to such
time as any Person becomes an Acquiring Person, redeem all but
not less than all the then outstanding Rights at a redemption
price of $.01 per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). The redemption of the
Rights by the Board of Directors may be made effective at such
time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights
pursuant to paragraph (a) of this Section 23, and without any
further action and without any notice, the right to exercise
the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price.
The Company shall promptly give public notice of any such
redemption; provided, however, that the failure to give, or any
defect in, any such notice shall not affect the validity of
such redemption. Within 10 days after such action of the Board
of Directors ordering the redemption of the Rights, the Company
shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear
upon the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent
for the Common Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption
will state the method by which the payment of the Redemption
Price will be made. Neither the Company nor any of its
Affiliates or Associates may redeem, acquire or purchase for
value any Rights at any time in any manner other than that
specifically set forth in this Section 23 or in Section 24
hereof, and other than in connection with the purchase of
Common Shares prior to the Distribution Date.
Section 24. Exchange. (a) The Board of Directors
of the Company may, at its option, at any time after any Person
becomes an Acquiring Person, exchange all or part of the then
outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not
be empowered to effect such exchange at any time after any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Shares for or pursuant
to the terms of any such plan), together with all Affiliates
and Associates of such Person, becomes the Beneficial Owner of
50% or more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any
further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a
holder of such Rights shall be to receive that number of Common
Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly
give public notice of any such exchange; provided, however,
that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all of the holders
of such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the
Common Shares for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have
become void pursuant to the provisions of Section 11(a)(ii)
hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all
such action as may be necessary to authorize additional Common
Shares for issuance upon exchange of the Rights. In the event
the Company shall, after good faith effort, be unable to take
all such action as may be necessary to authorize such
additional Common Shares, the Company shall substitute, for
each Common Share that would otherwise be issuable upon
exchange of a Right, a number of Preference Shares or fraction
thereof such that the current per share market price of one
Preference Share multiplied by such number or fraction is equal
to the current per share market price of one Common Share as of
the date of issuance of such Preference Shares or fraction
thereof.
(d) The Company shall not be required to issue
fractions of Common Shares or to distribute certificates which
evidence fractional Common Shares. In lieu of such fractional
Common Shares, the Company shall pay to the registered holders
of the Right Certificates with regard to which such fractional
Common Shares would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a
whole Common Share. For the purposes of this paragraph (d),
the current market value of a whole Common Share shall be the
closing price of a Common Share (as determined pursuant to the
second sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
Section 25. Notice of Certain Events. (a) In case
the Company shall propose (i) to pay any dividend payable in
stock of any class to the holders of its Preference Shares or
to make any other distribution to the holders of its Preference
Shares (other than a regular quarterly cash dividend), (ii) to
offer to the holders of its Preference Shares rights or
warrants to subscribe for or to purchase any additional
Preference Shares or shares of stock of any class or any other
securities, rights or options, (iii) to effect any
reclassification of its Preference Shares (other than a
reclassification involving only the subdivision of outstanding
Preference Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any sale or
other transfer), in one or more transactions, of 50% or more of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person, or (v) to effect the
liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a
Right Certificate, in accordance with Section 26 hereof, a
notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, or distribution
of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and
the date of participation therein by the holders of Preference
Shares, if any such date is to be fixed, and such notice shall
be so given in the case of any action covered by clause (i) or
(ii) above at least 10 days prior to the record date for
determining holders of the Preference Shares for purposes of
such action, and in the case of any such other action, at least
10 days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of
Preference Shares, whichever shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii)
hereof shall occur, then the Company shall as soon as
practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights
under Section 11(a)(ii) hereof.
(c) Notwithstanding anything in this Agreement to
the contrary, prior to the Distribution Date a filing by the
Company with the Securities and Exchange Commission shall
constitute sufficient notice to the holders of securities of
the Company, including the Rights, for purposes of this
Agreement and no other notice need be given.
Section 26. Notices. Notices or demands authorized
by this Agreement to be given or made by the Rights Agent or by
the holder of any Right Certificate to or on the Company shall
be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
General Mills, Inc.
Number One General Mills Boulevard
Minneapolis, MN 55426
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Norwest Bank Minnesota, N.A.
161 North Concord Exchange
P.O. Box 566
South St. Paul, MN 55075-0738
Attention: Shareholder Services
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books of
the Company.
Section 27. Supplements and Amendments. The Company
may from time to time supplement or amend this Agreement
without the approval of any holders of Right Certificates in
order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any
other provisions with respect to the Rights which the Company
may deem necessary or desirable, any such supplement or
amendment to be evidenced by a writing signed by the Company
and the Rights Agent; provided, however, that from and after
such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights.
Without limiting the foregoing, the Company may at any time
prior to such time as any Person becomes an Acquiring Person
amend this Agreement to lower the thresholds set forth in
Sections 1(a) and 3(a) to not less than the greater of (i) the
sum of .001% and the largest percentage of the outstanding
Common Shares then known by the Company to be beneficially
owned by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any
Subsidiary of the Company, or any entity holding Common Shares
for or pursuant to the terms of any such plan) and (ii) 10%.
Section 28. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders
of the Right Certificates (and, prior to the Distribution Date,
the Common Shares) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and
the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision,
covenant or restriction of this Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired
or invalidated.
Section 31. Governing Law. This Agreement and each
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for
all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts made and to
be performed entirely within such State.
Section 32. Counterparts. This Agreement may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and attested, all as of the
day and year first above written.
GENERAL MILLS, INC.
Attest:
By /s/ Ivy S. Bernhardson By /s/ Siri S. Marshall
Title: Assistant Secretary Title: Senior Vice President
Attest: NORWEST BANK MINNESOTA, N.A.
By /s/ Kenneth Swanson By /s/ Barbara M. Novak
Title: Assistant Secretary Title: Assistant Vice President
Exhibit A
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES B PARTICIPATING
CUMULATIVE PREFERENCE STOCK
of
GENERAL MILLS, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
________________________________
We, Stephen W. Sanger, Chairman of the Board, and
Siri S. Marshall, Secretary, of General Mills, Inc., a
corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance with
the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the
Board of Directors by the Restated Certificate of
Incorporation of the said Corporation; the said Board of
Directors on December 11, 1995, adopted the following
resolution creating a series of 2,000,000 shares of
Cumulative Preference Stock designated as Series B
Participating Cumulative Preference Stock:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation in accordance
with the provisions of its Restated Certificate of
Incorporation, a series of Cumulative Preference Stock of
the Corporation be and it hereby is created, and that the
designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other
special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as
follows:
1. Designation and Amount. The shares of such
series shall be designated as "Series B Participating
Cumulative Preference Stock" and the number of shares
constituting such series shall be 2,000,000.
2. Dividends and Distributions.
(A) The holders of shares of Series B
Participating Cumulative Preference Stock shall be entitled
to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the fifteenth day of
March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction
of a share of Series B Participating Cumulative Preference
Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $10.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and
100 times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions other than
a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common
Stock, par value $.10 per share, of the Corporation (the
"Common Stock") since the immediately preceding Quarterly
Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of
any share or fraction of a share of Series B Participating
Cumulative Preference Stock. In the event the Corporation
shall at any time after December 11, 1995 (the "Right
Declaration Date") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each
such case the amount to which holders of shares of Series B
Participating Cumulative Preference Stock were entitled
immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Participating Cumulative
Preference Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on
the Common Stock (other than a dividend payable in shares of
Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10.00 per share on the Series B
Participating Cumulative Preference Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B Participating
Cumulative Preference Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares
of Series B Participating Cumulative Preference Stock,
unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date,
in which case dividends of such shares shall begin to accrue
from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of
shares of Series B Participating Cumulative Preference Stock
entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series B Participating Cumulative Preference Stock
in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may
fix a record date for the determination of holders of shares
of Series B Participating Cumulative Preference Stock
entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 45
days prior to the date fixed for the payment thereof.
3. Voting Rights. In addition to the voting
rights set forth in Article IV of the Restated Certificate
of Incorporation or otherwise required by law, the holders
of shares of Series B Participating Cumulative Preference
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series B Participating
Cumulative Preference Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the
Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the
number of votes per share to which holders of shares of
Series B Participating Preference Stock were entitled
immediately prior to such event shall be adjusted by
multiplying such number by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series B Participating
Cumulative Preference Stock and the holders of shares of
Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series B
Participating Cumulative Preference Stock shall be in
arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark the
beginning of a period (herein called a "default period")
which shall extend until such time when all accrued and
unpaid dividends for all previous quarterly dividend periods
and for the current quarterly dividend period on all shares
of Series B Participating Cumulative Preference Stock then
outstanding shall have been declared and paid or set apart
for payment. During each default period, all holders of
Cumulative Preference Stock (including holders of the Series
B Participating Cumulative Preference Stock) with dividends
in arrears in an amount equal to six (6) quarterly dividends
thereon, voting as a class, irrespective of series, shall
have the right to elect two (2) Directors.
(ii) During any default period, such voting
right of the holders of Series B Participating Cumulative
Preference Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this
Section 3(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that
neither such voting right nor the right of the holders of
any other series of Cumulative Preference Stock, if any, to
increase, in certain cases, the authorized number of
Directors shall be exercised unless the holders of ten
percent (10%) in number of shares of Cumulative Preference
Stock outstanding shall be present in person or by proxy.
The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Cumulative
Preference Stock of such voting right. At any meeting at
which the holders of Cumulative Preference Stock shall
exercise such voting right initially during an existing
default period, they shall have the right, voting as a
class, to elect Directors to fill such vacancies, if any, in
the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual
meeting, to elect two (2) Directors. If the number which
may be so elected at any special meeting does not amount to
the required number, the holders of the Cumulative
Preference Stock shall have the right to make such increase
in the number of Directors as shall be necessary to permit
the election by them of the required number. After the
holders of the Cumulative Preference Stock shall have
exercised their right to elect Directors in any default
period and during the continuance of such period, the number
of Directors shall not be increased or decreased except by
vote of the holders of Cumulative Preference Stock as herein
provided or pursuant to the rights of any equity securities
ranking senior to or pari passu with the Series B
Participating Cumulative Preference Stock.
(iii) Unless the holders of Cumulative
Preference Stock shall, during an existing default period,
have previously exercised their right to elect Directors,
the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten
percent (10%) of the total number of shares of Cumulative
Preference Stock outstanding, irrespective of series, may
request, the calling of a special meeting of the holders of
Cumulative Preference Stock, which meeting shall thereupon
be called by the Chairman of the Board, the Chief Executive
Officer, the President, a Vice-President or the Secretary of
the Corporation. Notice of such meeting and of any annual
meeting at which holders of Cumulative Preference Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall
be given to each holder of record of Cumulative Preference
Stock by mailing a copy of such notice to the holder the
last address appearing on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20
days and not later than 60 days after such order or request
or in default of the calling of such meeting within 60 days
after such order or request, such meeting may be called on
similar notice by any stockholder or stockholders owning in
the aggregate not less than ten percent (10%) of the total
number of shares of Cumulative Preference Stock outstanding.
Notwithstanding the provisions of this paragraph (C)(iii),
no such special meeting shall be called during the period
within 60 days immediately preceding the date fixed for the
next annual meeting of the stockholders.
(iv) In any default period, the holders of
Common Stock, and other classes of stock of the Corporation,
if applicable, shall continue to be entitled to elect the
whole number of Directors until the holders of Cumulative
Preference Stock shall have exercised their right to elect
two (2) Directors voting as a class, after the exercise of
which right (x) the Directors so elected by the holders of
Cumulative Preference Stock shall continue in office until
their successors shall have been elected by such holders or
until the expiration of the default period, and (y) any
vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a
majority of the remaining Directors theretofore elected by
the holders of the class of stock which elected the Director
whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a
particular class of stock shall include Directors elected by
such Directors to fill vacancies as provided in clause (y)
of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of Cumulative
Preference Stock as a class to elect Directors shall cease,
(y) the term of any Directors elected by the holders of
Cumulative Preference Stock as a class shall terminate, and
(z) the number of Directors shall be such number as may be
provided for in the certificate of incorporation or by-laws
irrespective of any increase made pursuant to the provisions
of paragraph (C)(ii) of this Section 3 (such number being
subject, however, to change thereafter in any manner
provided by law or in the certificate of incorporation or by-
laws). Any vacancies in the Board of Directors effected by
the provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining
Directors.
(D) Except as set forth herein, holders of Series
B Participating Cumulative Preference Stock shall have no
special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking
any corporate action.
4. Reacquired Shares. Any shares of Series B
Participating Cumulative Preference Stock purchased or
otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
Cumulative Preference Stock and may be reissued as part of a
new series of Cumulative Preference Stock to be created by
resolution or resolutions of the Board of Directors, subject
to the conditions and restrictions on issuance set forth
herein.
5. Liquidation, Dissolution or Winding Up.
(A) Upon any voluntary liquidation, dissolution
or winding up of the Corporation, no distribution shall be
made to the holders of shares of stock ranking (either as to
dividends or upon liquidation, dissolution or winding up)
junior to the Series B Participating Cumulative Preference
Stock unless, prior thereto, the holders of shares of Series
B Participating Cumulative Preference Stock shall have
received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series B
Liquidation Preference"). Following the payment of the full
amount of the Series B Liquidation Preference, no additional
distributions shall be made to the holders of shares of
Series B Participating Cumulative Preference Stock unless,
prior thereto, the holders of shares of Common Stock shall
have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series B
Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph C below to reflect
such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such
number in clause (ii), the "Adjustment Number"). Following
the payment of the full amount of the Series B Liquidation
Preference and the Common Adjustment in respect of all
outstanding shares of Series B Participating Cumulative
Preference Stock and Common Stock, respectively, holders of
Series B Participating Cumulative Preference Stock and
holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to
be distributed in the ratio of the Adjustment Number to 1
with respect to such Cumulative Preference Stock and Common
Stock, on a per share basis, respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series B Liquidation Preference and the liquidation
preferences of all other series of Cumulative Preference
Stock, if any, which rank on a parity with the Series B
Participating Cumulative Preference Stock, then such
remaining assets shall be distributed ratably to the holders
of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there
are not sufficient assets available to permit payment in
full of the Common Adjustment then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number
of shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(D) Notwithstanding anything contained herein to
the contrary, and so long as Paragraph (2)(i) of Article IV
of the Restated Certificate of Incorporation shall so
require, the aggregate involuntary liquidation value of all
shares of Cumulative Preference Stock outstanding at any
time shall not exceed $300,000,000 and the aggregate
involuntary liquidation value of all shares of Series B
Participating Cumulative Preference Stock outstanding at any
time shall not exceed an amount equal to (i) $300,000,000,
minus (ii) the aggregate involuntary liquidation value of
all shares of any other series of Cumulative Preference
Stock then outstanding. The aggregate involuntary
liquidation value of the Series B Participating Cumulative
Preference Stock otherwise payable shall be reduced, if
necessary, to comply with the preceding sentence.
6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case the shares of Series B Participating Cumulative
Preference Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation shall at
any time after the Rights Declaration Date (i) declare any
dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series B Participating Cumulative
Preference Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to
such event.
7. No Redemption. The shares of Series B
Participating Cumulative Preference Stock shall not be
redeemable.
8. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be further
amended in any manner which would materially alter or change
the powers, preferences or special rights of the Series B
Participating Cumulative Preference Stock so as to affect
them adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series B
Participating Cumulative Preference Stock, voting separately
as a class.
9. Fractional Shares. Series B Participating
Cumulative Preference Stock may be issued in fractions of a
share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series B
Participating Cumulative Preference Stock.
IN WITNESS WHEREOF, we have executed and
subscribed this Certificate and do affirm the foregoing as
true under the penalties of perjury this 18th day of
December, 1995.
/s/S. W. Sanger
Chairman of the Board
Attest:
/s/S. S. Marshall
Secretary
Exhibit B
Form of Right Certificate
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER FEBRUARY 1, 2006 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUB-
JECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
GENERAL MILLS, INC.
This certifies that ___________________, or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of the
Rights Agreement, dated as of December 11, 1995 (the "Rights
Agreement"), between General Mills, Inc., a Delaware
corporation (the "Company"), and Norwest Bank Minnesota, N.A.
(the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M., local time in the
State of the principal office of the Rights Agent, on February
1, 2006 at the principal office of the Rights Agent, or at the
office of its successor as Rights Agent, one one- hundredth of
a fully paid non-assessable share of Series B Participating
Cumulative Preference Stock, without par value (the "Preference
Shares"), of the Company, at a purchase price of $240 per one
one-hundredth of a Preference Share (the "Purchase Price"),
upon presentation and surrender of this Right Certificate with
the Form of Election to Purchase duly executed. The number of
Rights evidenced by this Right Certificate (and the number of
one one- hundredths of a Preference Share which may be
purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase
Price as of December 11, 1995, based on the Preference Shares
as constituted at such date. As provided in the Rights
Agreement, the Purchase Price and the number of one one-
hundredths of a Preference Share (or other securities) which
may be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated herein
by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the
holders of the Right Certificates. Copies of the Rights
Agreement are on file at the principal executive offices of the
Company and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
Preference Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Certificate (i) may be redeemed by
the Company at a redemption price of $.01 per Right or (ii) may
be exchanged in whole or in part for Preference Shares or
shares of the Company's Common Stock, par value $.10 per share.
No fractional Preference Shares will be issued upon
the exercise of any Right or Rights evidenced hereby (other
than fractions which are integral multiples of one one-
hundredth of a Preference Share, which may, at the election of
the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of the Preference Shares or of any other securities of
the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised
as provided in the Rights Agreement.
This Right Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal. Dated as of
__________________.
ATTEST: GENERAL MILLS, INC.
By
Countersigned:
NORWEST BANK MINNESOTA, N.A.
By
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ____________ hereby sells, assigns
and transfers unto
____________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint ___________ Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ___________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the
National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or
correspondent in the United States.
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially owned
by an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
Signature
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: GENERAL MILLS, INC.
The undersigned hereby irrevocably elects to exercise
____________ Rights represented by this Right Certificate to
purchase the Preference Shares issuable upon the exercise of
such Rights and requests that certificates for such Preference
Shares be issued in the name of:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced
by this Right Certificate, a new Right Certificate for the
balance remaining of such Rights shall be registered in the
name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: ____________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the
National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or
correspondent in the United States.
Form of Reverse Side of Right Certificate -- continued
The undersigned hereby certifies that the Rights
evidenced by this Right Certificate are not beneficially owned
by an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement).
Signature
NOTICE
The signature in the Form of Assignment or Form of
Election to Purchase, as the case may be, must conform to the
name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any
change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights Agent
will deem the beneficial owner of the Rights evidenced by this
Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERENCE SHARES
On December 11, 1995, the Board of Directors of
General Mills, Inc. (the "Company") declared a dividend of one
preference share purchase right (a "Right") for each
outstanding share of common stock, par value $.10 per share
(the "Common Shares"), of the Company. The dividend is payable
on February 1, 1996 to stockholders of record on January 10,
1996 (the "Record Date"). Each Right entitles the registered
holder to purchase from the Company one one-hundredth of a
share of Series B Participating Cumulative Preference Stock,
without par value (the "Preference Shares"), of the Company at
a price of $240 per one one-hundredth of a Preference Share
(the "Purchase Price"), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement
(the "Rights Agreement") between the Company and Norwest Bank
Minnesota, N.A., as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired
beneficial ownership of 20% or more of the outstanding Common
Shares or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such
time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of the
outstanding Common Shares (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share
certificate with a copy of this Summary of Rights attached
thereto.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or new
issuance of Common Shares will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date, even without such notation
or a copy of this Summary of Rights being attached thereto,
will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will
be mailed to holders of record of the Common Shares as of the
close of business on the Distribution Date and such separate
Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on February 1, 2006 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the
Company, in each case, as described below.
The Purchase Price payable, and the number of
Preference Shares or other securities or property issuable,
upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification
of, the Preference Shares, (ii) upon the grant to holders of
the Preference Shares of certain rights or warrants to
subscribe for or purchase Preference Shares at a price, or
securities convertible into Preference Shares with a conversion
price, less than the then-current market price of the
Preference Shares or (iii) upon the distribution to holders of
the Preference Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings
or retained earnings or dividends payable in Preference Shares)
or of subscription rights or warrants (other than those
referred to above).
The number of outstanding Rights and the number of
one one-hundredths of a Preference Share issuable upon exercise
of each Right are also subject to adjustment in the event of a
stock split of the Common Shares or a stock dividend on the
Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring,
in any such case, prior to the Distribution Date.
Preference Shares purchasable upon exercise of the
Rights will not be redeemable. Each Preference Share will be
entitled to a minimum preferential quarterly dividend payment
of $10 per share but will be entitled to an aggregate dividend
of 100 times the dividend declared per Common Share. In the
event of liquidation, the holders of the Preference Shares will
be entitled to a minimum preferential liquidation payment of
$100 per share but will be entitled to an aggregate payment of
100 times the payment made per Common Share. Each Preference
Share will have 100 votes, voting together with the Common
Shares. Finally, in the event of any merger, consolidation or
other transaction in which Common Shares are exchanged, each
Preference Share will be entitled to receive 100 times the
amount received per Common Share. These rights are protected
by customary antidilution provisions.
Because of the nature of the Preference Shares'
dividend, liquidation and voting rights, the value of the one
one-hundredth interest in a Preference Share purchasable upon
exercise of each Right should approximate the value of one
Common Share.
In the event that the Company is acquired in a merger
or other business combination transaction or 50% or more of its
consolidated assets or earning power are sold after a person or
group has become an Acquiring Person, proper provision will be
made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right. In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person
(which will thereafter be void), will thereafter have the right
to receive upon exercise that number of Common Shares having a
market value at the time of such occurrence of two times the
exercise price of the Right.
At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person or
group of 50% or more of the outstanding Common Shares, the
Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will
have become void), in whole or in part, at an exchange ratio of
one Common Share, or one one-hundredth of a Preference Share,
per Right (subject to adjustment).
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments
require an adjustment of at least 1% in such Purchase Price.
No fractional Preference Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of
a Preference Share, which may, at the election of the Company,
be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of
the Preference Shares on the last trading day prior to the date
of exercise.
At any time prior to the acquisition by a person or
group of affiliated or associated persons of beneficial
ownership of 20% or more of the outstanding Common Shares, the
Board of Directors of the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions
as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board
of Directors of the Company without the consent of the holders
of the Rights, including an amendment to lower certain
thresholds described above to not less than the greater of
(i) the sum of .001% and the largest percentage of the
outstanding Common Shares then known to the Company to be
beneficially owned by any person or group of affiliated or
associated persons and (ii) 10%, except that from and after
such time as any person or group of affiliated or associated
persons becomes an Acquiring Person, no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated December __, 1995. A
copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is hereby incorporated
herein by reference.
December 11, 1995
GENERAL MILLS DECLARES QUARTERLY DIVIDEND;
UPDATES SHAREHOLDER RIGHTS PLAN
MINNEAPOLIS, MINN. -- The General Mills' Board of
Directors today approved a quarterly dividend payment at the
prevailing rate of 47 cents per share, payable February 1,
1996, to shareholders of record January 10.
General Mills plans to review its dividend in calendar
1996 and intends to increase dividends over time--although at
a rate slower than earnings growth until the payout ratio
reaches the targeted range of 50-to 60-percent.
The Board also adopted an updated Preferred Share
Purchase Rights Plan to replace the existing plan which
expires in early March 1996. The Board of Directors
originally adopted a Shareholder Rights Plan in February 1986
to protect shareholder interests in the event the Company was
faced with a takeover initiative that would deny shareholders
the full value of their investment. General Mills has no
knowledge that anyone is considering a hostile takeover of
the Company.
The new Rights are similar in purpose and effect to the
existing Rights, and are intended to enable all shareholders
to realize the long-term value of their investment in General
Mills. The new Rights will be exercisable only if a person
acquires, or announces a tender offer which would result in
ownership of, 20% or more of the Company's common stock. The
initial exercise price will be $240 per Right. The Rights
will expire on February 1, 2006. A summary of the updated
Rights plan will be sent to shareholders in February.
BY-LAWS
of
GENERAL MILLS, INC.
as amended
through
December 11, 1995
INDEX OF BY-LAWS
Page
ARTICLE I. STOCKHOLDERS 1
Section 1. Place of Holding Meeting 1
Section 2. Quorum 1
Section 3. Adjournment of Meetings 1
Section 4. Annual Election of Directors 2
Section 5. Special Meetings: How Called 2
Section 6. Voting at Stockholders' Meetings 2
Section 7. Notice of Stockholders' Meetings 3
Section 8. Notice of Stockholder Business and
Nominations 3
ARTICLE II. DIRECTORS. 5
Section 1. Organization 5
Section 2. Election of Officers 5
Section 3. Regular Meetings 6
Section 4. Special Meetings: How Called: Notice 6
Section 5. Number: Qualifications: Quorum: Term 6
Section 6. Place of Meetings 6
Section 7. Powers of Directors 7
Section 8. Vacancies. 7
Section 9. Resignation of Directors 7
Section 10. Compensation of Directors 7
Section 11. Executive Committee 7
Section 12. Executive Committee: Powers 8
Section 13. Executive Committee: Organization:
Meetings, Etc. 8
Section 14. Resignation and Removal of Member of
Executive Committee 9
Section 15. Vacancies in the Executive Committee 9
Section 16. Other Committees 9
ARTICLE III. OFFICERS 9
Section 1. Titles. 9
Section 2. Chairman 9
Section 3. Vice Chairman 10
Section 4. President 10
Section 5. Vice President(s) 10
Section 6. Secretary 10
Section 7. Assistant Secretary 11
Section 8. Senior Vice President, Corporate Finance 11
Section 9. Director of Finance 11
Section 10. Senior Vice President, Financial Operations 11
Section 11. Resignation and Removal of Officers 12
Section 12. Salaries 12
ARTICLE IV. CAPITAL STOCK 12
Section 1. Issue of Certificates of Stock 12
Section 2. Transfer of Shares 12
Section 3. Dividends 13
Section 4. Lost Certificates 13
Section 5. Rules as to Issue of Certificates 13
Section 6. Holder of Record Deemed Holder in Fact 13
Section 7. Closing of Transfer Books or Fixing
Record Date 13
ARTICLE V. CONTRACTS, CHECKS, DRAFTS,
BANK ACCOUNTS, ETC. 14
Section 1. Contracts, Etc.: How Executed 14
Section 2. Loans 14
Section 3. Deposits 14
Section 4. Checks, Drafts, Etc. 14
Section 5. Transaction of Business 15
ARTICLE VI. MISCELLANEOUS PROVISIONS 15
Section 1(a) Fiscal Year 15
Section 1(b) Staff and Divisional Titles 15
Section 2. Notice and Waiver of Notice 15
Section 3. Inspection of Books 15
Section 4. Construction 16
Section 5. Adjournment of Meetings 16
Section 6. Indemnification 16
Section 7. Resolution of Board of Directors
Providing for Issuance of Cumulative
Preference Stock 18
ARTICLE VII. AMENDMENTS 18
Section 1. Amendment of By-Laws 18
BY-LAWS
of
GENERAL MILLS, INC.
ARTICLE I
STOCKHOLDERS
SECTION 1. Place of Holding Meeting: Meetings of
stockholders may be held within or without the State of
Delaware, and, unless otherwise determined by the board of
directors or the stockholders, all meetings of the stockholders
shall be held at the principal office of the corporation in the
City of Minneapolis in the State of Minnesota.
SECTION 2. Quorum: Any number of stockholders together
holding one-half (1/2) in amount of the stock issued and
outstanding entitled to vote, who shall be present in person or
represented by proxy at any meeting duly called, shall
constitute a quorum for the transaction of business, except as
may be otherwise provided by law, by the certificate of
incorporation, or by these by-laws. At any meeting of
stockholders for the election of directors at which any class or
classes of stock or any one or more series of any class or
classes of stock shall have a separate vote as such class or
series for the election of directors by such class or series,
the absence of a quorum of any other class of stock or of any
other series of any class of stock shall not prevent the
election of the directors to be elected by such class or series.
SECTION 3. Adjournment of Meetings: If less than a quorum
shall be in attendance at the time for which the meeting shall
have been called, the meeting may be adjourned from time to time
by the chairman of the meeting or by a majority vote of the
stockholders present or represented, without any notice other
than by announcement at the meeting, until a quorum shall
attend. Any meeting at which a quorum is present may also be
adjourned, in like manner, for such time, or upon such call, as
may be determined by the chairman of the meeting or by a
majority vote of the stockholders. At any such adjourned
meeting at which a quorum may be present any business may be
transacted which might have been transacted at the meeting as
originally called. In the absence of a quorum of any class or
classes of stock or any one or more series of any class or
classes of stock at any meeting of stockholders at which more
than one class or series of stock shall be entitled to vote
separately as a class or series for the election of directors, a
majority in interest of the stockholders present in person or by
proxy of the class or classes or one or more series of stock
which lack a quorum shall also have the power to adjourn the
meeting for the election of directors which they are entitled to
elect, from time to time, without notice other than by
announcement at the meeting, until a quorum of such class or
classes or one or more series of stock shall be present.
SECTION 4. Annual Election of Directors: The annual
meeting of stockholders for the election of directors and the
transaction of other business shall be held on such date and at
such time as may be fixed by resolution of the board of
directors.
After the first election of directors no stock shall be
voted on at any election which shall have been transferred on
the books of the corporation within twenty (20) days next
preceding such election, except where the transfer books of the
corporation shall have been closed or a date shall have been
fixed as a record date for the determination of the stockholders
entitled to vote, as hereinafter in article IV, section 7 of
these by-laws provided.
The directors elected annually shall hold office until the
next annual election and until their successors are respectively
elected and qualified; provided, however, in the event that the
holders of any class or classes of stock or any one or more
series of any class or classes of stock have the right to elect
directors separately as a class or series and such right shall
have vested, such right may be exercised as provided in the
certificate of incorporation of the corporation.
The secretary shall prepare, or cause to be prepared, at
least ten (10) days before every election, a complete list of
stockholders entitled to vote, arranged in alphabetical order,
and such list shall be open at the place where the election is
to be held, for such ten (10) days, to the examination of any
stockholder, and shall be produced and kept at the time and
place of election during the whole time thereof, subject to the
inspection of any stockholder who may be present.
SECTION 5. Special Meetings: How Called: Special meetings
of the stockholders for any purpose or purposes may be called by
the chairman of the board of directors or by resolution of the
board of directors. Special meetings of the holders of any
class or classes of stock or any one or more series of any class
or classes of stock for the purpose of electing directors in
accordance with a special right as a class or series shall be
called as provided in the certificate of incorporation of the
corporation.
SECTION 6. Voting at Stockholders' Meetings: The board of
directors shall determine the voting power of any cumulative
preference stock in accordance with article IV of the
certificate of incorporation. At all meetings of stockholders
all questions, except as otherwise provided by law or the
certificate of incorporation, shall be determined by a majority
vote in interest of the stockholders entitled to vote present in
person or represented by proxy; provided, however, that any
qualified voter may demand a stock vote, and in that case, such
stock vote shall immediately be taken. A stock vote shall be by
ballot and each ballot shall be signed by the stockholder
voting, or by his proxy, if there be such proxy, and shall state
the number of shares voted. Shares of its own capital stock
belonging to the corporation shall not be voted upon directly or
indirectly. The vote on stock of the corporation may be given
by the stockholder entitled thereto in person or by his proxy
appointed by an instrument in writing, subscribed by such
stockholder or by his attorney thereunto authorized, and
delivered to the secretary of the meeting. No proxy shall be
voted on after three (3) years from its date, unless said proxy
provides for a longer period. In determining the number of
votes cast for or against a proposal, shares abstaining from
voting on a matter (including elections) will not be treated as
a vote for or against the proposal. A non-vote by a broker will
be treated as if the broker never voted.
SECTION 7. Notice of Stockholders' Meetings: Written
notice, stating the time and place of the meeting and, in case
of a special meeting, stating also the general nature of the
business to be considered, shall be given by the secretary by
mailing, or causing to be mailed, such notice, postage prepaid,
to each stockholder entitled to vote, at his post office address
as the same appears on the stock books of the corporation, or by
delivering such notice to him personally, at least ten (10) days
before the meeting.
SECTION 8. Notice of Stockholder Business and Nominations:
(a) Annual Meetings of Stockholders. (1)
Nominations of persons for election to the board of
directors of the corporation and the proposal of business
to be considered by the stockholders may be made at an
annual meeting of stockholders (A) pursuant to the
corporation's notice of meeting, (B) by or at the direction
of the board of directors or (C) by any stockholder of the
corporation who was a stockholder of record at the time of
giving of notice provided for in this section 8, who is
entitled to vote at the meeting and who complies with the
notice procedures set forth in this section 8.
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder
pursuant to clause (C) of paragraph (a)(1) of this section
8, the stockholder must have given timely notice thereof in
writing to the secretary of the corporation and such other
business must otherwise be a proper matter for stockholder
action. To be timely, a stockholder's notice shall be
delivered to the secretary at the principal executive
offices of the corporation not later than the close of
business on the 60th day nor earlier than the close of
business on the 90th day prior to the first anniversary of
the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the close of business
on the 90th day prior to such annual meeting and not later
than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such
meeting is first made by the corporation. In no event
shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of
a stockholder's notice as described above. Such
stockholder's notice shall set forth (A) as to each person
whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such
person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest,
or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and Rule 14a-11 thereunder
(including such person's written consent to being named in
the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before
the meeting, the reasons for conducting such business at
the meeting and any material interest in such business of
such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (C) as to the stockholder
giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the
corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the corporation which are
owned beneficially and of record by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (a)(2) of this section 8 to the
contrary, in the event that the number of directors to be
elected to the board of directors of the corporation is
increased and there is no public announcement by the
corporation naming all of the nominees for director or
specifying the size of the increased board of directors at
least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice
required by this section 8 shall also be considered timely,
but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the
secretary at the principal executive offices of the
corporation not later than the close of business on the
10th day following the day on which such public
announcement is first made by the corporation.
(b) Special Meetings of Stockholders. Only such
business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting
pursuant to the corporation's notice of meeting.
Nominations of persons for election to the board of
directors may be made at a special meeting of stockholders
at which directors are to be elected pursuant to the
corporation's notice of meeting (A) by or at the direction
of the board of directors or (B) provided that the board of
directors has determined that directors shall be elected at
such meeting, by any stockholder of the corporation who is
a stockholder of record at the time of giving of notice
provided for in this section 8, who shall be entitled to
vote at the meeting and who complies with the notice
procedures set forth in this section 8. In the event the
corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board of
directors, any such stockholder may nominate a person or
persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of
meeting, if the stockholder's notice required by paragraph
(a)(2) of this section 8 shall be delivered to the
secretary at the principal executive offices of the
corporation not earlier than the close of business on the
90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to
such special meeting or the 10th day following the day on
which public announcement is first made of the date of the
special meeting and of the nominees proposed by the board
of directors to be elected at such meeting. In no event
shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving
of a stockholder's notice as described above.
(c) General. (1) Only such persons who are
nominated in accordance with the procedures set forth in
this section 8 shall be eligible to serve as directors and
only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this section
8. Except as otherwise provided by law, the chairman of
the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this
section 8 and, if any proposed nomination or business is
not in compliance with this section 8, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this section 8, "public
announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(3) Notwithstanding the foregoing provisions of
this section 8, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set
forth in this section 8. Nothing in this section 8 shall
be deemed to affect any rights (i) of stockholders to
request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or
any successor rule regarding shareholder proposals or (ii)
of the holders of any series of cumulative preference stock
to elect directors under specified circumstances pursuant
to the terms of such preference stock.
ARTICLE II
DIRECTORS
SECTION 1. Organization: The board of directors may hold
a meeting for the purpose of organization and the transaction of
other business, if a quorum be present, immediately before or
after the annual meeting of the stockholders and immediately
before or after any special meeting at which directors are
elected. Notice of such meeting need not be given. Such
organizational meeting may be held at any other time or place,
which shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or in a
consent and waiver of notice thereof signed by all the
directors.
SECTION 2. Election of Officers: At such meeting the
board of directors may elect from among its number a chairman of
the board of directors, one or more persons to serve as a vice
chairman; a president and one or more corporate and company vice
presidents, a secretary, a senior vice president, corporate
finance, a senior vice president, financial operations, one or
more assistant secretaries, and one or more directors of finance
who need not be members of the Board of Directors. Such
officers shall hold office until the next annual election of
officers and until their successors are respectively elected and
qualified, unless removed by the board of directors as provided
in section 11 of article III.
SECTION 3. Regular Meetings: Regular meetings of the
board of directors shall be held on such dates as are
designated, from time to time, by resolutions of the board, and
shall be held at the principal office of the corporation, or at
such other location as the board selects. Each regular meeting
shall commence at the time designated by the Chairman of the
Board on at least five (5) days' written notice to each director
when sent by mail and on at least three (3) days' notice when
sent by private express carrier or transmitted by telex,
facsimile or similar means.
SECTION 4. Special Meetings: How Called: Notice:
Special meetings of the board of directors may be called by the
chairman of the board, a vice chairman of the board, the
president or by any three (3) directors who are not salaried
officers or salaried employees of the corporation. Written
notice of the time, place and purposes of each special meeting
shall be sent by private express carrier or transmitted by
telex, facsimile or similar means to each director at least
twenty-four (24) hours prior to such meeting. Notwithstanding
the preceding, any meeting of the board of directors shall be a
legal meeting without any notice thereof if all the members of
the board shall be present, or if all absent members waive
notice thereof.
SECTION 5. Number: Qualifications: Quorum: Term:
(a) The Board of Directors shall determine the number of
directors on the board, which shall be at least twelve (12).
(b) No person shall be eligible to become or to remain a
director of the corporation unless the person is a
stockholder in the corporation. Not more than six (6) of
the members of the board of directors shall be officers or
employees of the corporation, but the chairman of the board
shall not be deemed such an officer or employee.
(c) Subject to the provisions of the certificate of
incorporation, as amended, one-third (1/3) of the total
number of the directors (but in no event less than two (2))
shall constitute a quorum for the transaction of business.
The affirmative vote of the majority of the directors
present at a meeting at which a quorum is constituted shall
be the act of the board of directors, unless the certificate
of incorporation shall require a vote of a greater number.
(d) Except as otherwise provided in these by-laws,
directors shall hold office until the next succeeding annual
stockholders' meeting and thereafter until their successors
are respectively elected and qualified.
SECTION 6. Place of Meetings: The board of directors may
hold its meetings and keep the books of the corporation outside
of the State of Delaware, at any office or offices of the
corporation, or at any other place, as it may from time to time
by resolution determine.
SECTION 7. Powers of Directors: The board of directors
shall have the management of the business of the corporation,
and, subject to the restrictions imposed by law, by the
certificate of incorporation or by these by-laws, may exercise
all the powers of the corporation.
SECTION 8. Vacancies: Except as otherwise provided in the
certificate of incorporation, any vacancy in the board of
directors because of death, resignation, disqualification,
increase in number of directors, or any other cause may be
filled by a majority of the remaining directors, though less
than a quorum, at any regular or special meeting of the
directors; or any such vacancy resulting from any cause
whatsoever may be filled by the stockholders at the first annual
meeting held after such vacancy shall occur or at a special
meeting thereof called for the purpose.
SECTION 9. Resignation of Directors: Any director of the
corporation may resign at any time by giving written notice to
the chairman of the board or to the secretary of the
corporation. Such resignation shall take effect at the time
specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
SECTION 10. Compensation of Directors: The board of
directors shall have the authority to fix the compensation of
directors. In addition, each director shall be entitled to be
reimbursed by the corporation for expenses incurred in attending
meetings of the board of directors or of any committee of which
he or she is a member. Nothing herein contained shall be
construed to preclude any director from serving the corporation
in any other capacity and receiving compensation for such
services from the corporation; provided, however, that any
person who is receiving a stated compensation as an officer of
the corporation for services as such officer shall not receive
any additional compensation for services as a director during
such period. A director entitled to receive stated compensation
for services as director, who shall serve for only a portion of
a year, shall be entitled to receive only that portion of the
annual stated compensation on which the period of service during
the year bears to the entire year. The annual compensation of
directors shall be paid at such times and in such installments
as the board of directors may determine.
SECTION 11. Executive Committee:
(a) The board of directors may appoint from its number an
executive committee of not less than eight (8) members.
(b) Not more than four (4) members shall be officers or
employees of the corporation but the chairman of the board
shall not be deemed such an officer or employee.
(c) A majority shall constitute a quorum, and in every
case the affirmative vote of a majority of all the members
of the committee shall be necessary for the adoption of any
motion, provided that in order to procure and maintain a
quorum at any meeting of the executive committee in the
absence or disqualification of any member of such committee,
the member or members thereof present at such meeting and
not disqualified from voting, whether or not they constitute
a quorum, may unanimously appoint another member of the
board of directors (subject always to the limitations of
subsection (b) above) to act at the meeting in the place of
any such absent or disqualified member.
(d) Each member of the executive committee, if appointed,
shall hold office until the election at the next succeeding
annual meeting of the stockholders of the corporation of a
new board of directors; subject to the provisions of section
14 of this article.
SECTION 12. Executive Committee: Powers: During the
intervals between the meetings of the board of directors, the
executive committee shall have and may exercise all the powers
of the board of directors in the management of the business and
affairs of the corporation, including power to authorize the
execution of any papers and to authorize the seal of the
corporation to be affixed to all papers which may require it, in
such manner as such committee shall deem best for the interests
of the corporation, in all cases in which specific directions
shall not have been given by the board of directors.
SECTION 13. Executive Committee: Organization: Meetings,
Etc.: The chairman of the executive committee shall preside at
all meetings of the executive committee and the secretary of the
corporation shall act as secretary of the executive committee.
In the absence of the chairman of the executive committee the
committee shall appoint another member thereof to act as
chairman of the meeting, and in the absence of the secretary, an
assistant secretary of the corporation shall act as secretary of
the meeting. In the absence of all of such persons, the
committee shall appoint a chairman or a secretary of the
meeting, as the case may be. If an executive committee shall be
appointed it shall hold regular meetings on such dates and at
such times and places as the chairman or a majority of the
members of the executive committee shall determine, unless the
board of directors shall otherwise provide. A special meeting
of the executive committee may be called by the chairman of the
board, the chairman of the executive committee or the secretary
of the corporation upon such notice as may be given for special
meetings of the board of directors. Any meeting of the
executive committee shall be a legal meeting without notice
thereof if all the members of the committee shall be present or
if all absent members waive notice thereof. The committee shall
keep a record of its acts and proceedings and report thereon to
the board of directors at the regular meeting thereof held next
after they shall have been taken.
SECTION 14. Resignation and Removal of Member of Executive
Committee: Any member of the executive committee may resign at
any time or may be removed at any time either with or without
cause by resolution adopted by a majority of the whole board of
directors at any meeting of the board of directors at which a
quorum is present.
SECTION 15. Vacancies in the Executive Committee: Any
vacancy in the executive committee shall be filled in the manner
prescribed by these by-laws for the original appointment of such
committee.
SECTION 16. Other Committees: The board of directors may by
resolution designate one or more other committees, in addition
to the executive committee, each of which shall consist of two
or more directors of the corporation. The board of directors
may designate one or more directors as alternate members of any
such other committee, who may replace any absent or disqualified
member at any meeting of such committee. Any such other
committee may, to the extent permitted by law, exercise such
powers and shall have such responsibilities as shall be
specified in the designating resolution. In the absence or
disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum,
may unanimously appoint another member of the board of directors
to act at the meeting in the place of any such absent or
disqualified member. Each such committee shall keep written
minutes of its proceedings and shall report such proceedings to
the board of directors when required. The chairman or a
majority of the members of any such other committee may fix the
time and place of its meetings, unless the board of directors
shall otherwise provide. Notice of such meetings shall be given
to each member of the committee in the manner provided for in
sections 3 and 4 of this article II with respect to meetings of
the board of directors. The board of directors shall have power
at any time to fill vacancies in, to change the membership of,
or to dissolve any such committee. Nothing herein shall be
deemed to prevent the board of directors from appointing one or
more committees consisting in whole or in part of persons who
are not directors of the corporation; provided, however, that no
such committee shall have or may exercise any authority limited
by law to the board of directors or a committee thereof.
ARTICLE III
OFFICERS
SECTION 1. Titles: The corporate and company officers to be
elected by the board of directors shall be a chairman of the
board of directors and one or more persons to serve as a vice
chairman, and a president, who shall be directors, and one or
more corporate or company vice presidents, a secretary, a senior
vice president, corporate finance, a senior vice president,
financial operations, one or more assistant secretaries, and one
or more directors of finance who need not be directors. The
board shall designate one of the corporate officers to serve as
chief executive officer.
SECTION 2. Chairman: The chairman of the board of directors
shall preside at all meetings of the board, all meetings of the
stockholders, as well as all meetings of the executive
committee. The chairman, upon being designated the chief
executive officer, shall have supervisory authority over the
policies of the corporation as well as the management and
control of the business and affairs of the corporation. He or
she shall also exercise such other powers as the board of
directors may from time to time direct or which may be required
by law.
SECTION 3. Vice Chairman: The officer or officers serving
as vice chairman shall have such duties and responsibilities
relating to the management of the corporation as may be defined
and designated by the chief executive officer or the board of
directors.
SECTION 4. President: The president shall have
responsibility for the management of the operating businesses of
the corporation and shall do and perform all acts incident to
the office of president or which are authorized by the chief
executive officer, the board of directors or as may be required
by law.
SECTION 5. Vice President(s): Each corporate vice president
shall have such designations and such powers and shall perform
such duties as may be assigned by the board of directors or the
chief executive officer. The board of directors may designate
one or more corporate vice presidents to be a senior executive
vice president, executive vice president, senior vice president,
or group vice president.
Each company vice president shall have such designations and
such powers, and shall perform such duties as may be assigned by
the board of directors, the chief executive officer or by a
corporate vice president.
SECTION 6. Secretary: The secretary shall:
(a) keep the minutes of the meetings of the stockholders,
of the board of directors and of the executive committee in
books provided for the purpose;
(b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law;
(c) be custodian of the records and have charge of the
seal of the corporation and see that it is affixed to all
stock certificates prior to their issuance and to all
documents the execution of which on behalf of the
corporation under its seal is duly authorized in accordance
with the provisions of these by-laws;
(d) have charge of the stock books of the corporation and
keep or cause to be kept the stock and transfer books in
such manner as to show at any time the amount of the stock
of the corporation issued and outstanding, the manner in
which and the time when such stock was paid for, the names,
alphabetically arranged, and the addresses of the holders of
record thereof, the number of shares held by each, and the
time when each became such holder of record; exhibit or
cause to be exhibited at all reasonable times to any
director, upon application, the original or duplicate stock
ledger;
(e) see that the books, reports, statements, certificates
and all other documents and records required by law are
properly kept, executed and filed; and
(f) in general, perform all duties incident to the office
of secretary, and such other duties as from time to time may
be assigned by the board of directors.
SECTION 7. Assistant Secretary: The board of directors may
elect an assistant secretary or more than one assistant
secretary. At the request of the secretary, or in his or her
absence or disability, an assistant secretary may perform all
the duties of the secretary, and, when so acting, shall have all
the powers of, and be subject to all the restrictions upon, the
secretary. Each assistant secretary shall have such other
powers and shall perform such other duties as may be assigned by
the board of directors.
SECTION 8. Senior Vice President, Corporate Finance: The
senior vice president, corporate finance, if required so to do
by the board of directors, shall give a bond for the faithful
discharge of his or her duties in such sum, and with such
sureties, as the board of directors shall require. The senior
vice president, corporate finance shall:
(a) have charge and custody of, and be responsible for,
all funds and securities of the corporation (until deposited
to the credit or account of the corporation with an
authorized depositary) and deposit all such funds in the
name of the corporation in such banks, banking firms, trust
companies or other depositaries as shall be selected in
accordance with the provisions of article V of these by-
laws;
(b) exhibit at all reasonable times the books of account
and records to any of the directors of the corporation upon
application during business hours at the office of the
corporation where such books and records are kept;
(c) receive, and give receipt for, moneys due and payable
to the corporation from any source whatsoever; and
(d) in general, perform all the duties incident to the
office of senior vice president, corporate finance and such
other duties as from time to time may be assigned by the
board of directors.
SECTION 9. Director of Finance: The board of directors may
elect a director of finance or more than one director of
finance. At the request of the senior vice president, corporate
finance, or in his or her absence or disability, a director of
finance may perform all the duties of the senior vice president,
corporate finance, and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the
senior vice president, corporate finance. Each director of
finance shall have such other powers and shall perform such
other duties as may be assigned by the board of directors.
SECTION 10. Senior Vice President, Financial Operations:
The senior vice president, financial operations shall perform
all of the duties incident to the office of senior vice
president, financial operations, as such duties may from time to
time be designated or approved by the board of directors.
Included in such duties shall be the establishment and
maintenance of sound accounting and auditing policies and
practices, in respect to which duties he or she shall be
responsible directly to the board of directors through its
chairman.
SECTION 11. Resignation and Removal of Officers: Any
officer of the corporation may resign at any time by giving
written notice to the chairman of the board or to the secretary.
Such resignation shall take effect at the time specified
therein, and unless otherwise specified therein the acceptance
of such resignation shall not be necessary to make it effective.
Any officer may be removed for cause at any time by a
majority of the board of directors and any officer may be
removed summarily without cause by such vote.
SECTION 12. Salaries: The salaries of officers shall be
fixed from time to time by the board of directors or the
executive committee or other committee appointed by the board.
The board of directors or the executive committee of the board
may authorize and empower the chief executive officer, the
president, any vice chairman, or any vice president of the
corporation designated by the board of directors or by the
executive committee to fix the salaries of all officers of the
corporation who are not directors of the corporation. No
officer shall be prevented from receiving a salary by reason of
the fact that he or she is also a director of the corporation.
ARTICLE IV
CAPITAL STOCK
SECTION 1. Issue of Certificates of Stock: Certificates for
the shares of the capital stock of the corporation shall be in
such forms as shall be approved by the board of directors. Each
stockholder shall be entitled to a certificate for shares of
stock under the seal of the corporation, signed by the chairman,
the president, a vice chairman or a vice president and also by
the secretary or an assistant secretary or by the senior vice
president, corporate finance or a director of finance; provided,
however, that where a certificate is countersigned by a transfer
agent, other than the corporation or its employee, or by a
registrar, other than the corporation or its employee, the
corporate seal and any other signature on such certificate may
be a facsimile, engraved, stamped or printed. In case any
officer, transfer agent or registrar of the corporation who
shall have signed, or whose facsimile signature shall have been
used on any such certificate, shall cease to be such officer,
transfer agent or registrar, whether because of death,
resignation, or otherwise, before such certificate shall have
been delivered by the corporation, such certificate shall
nevertheless be deemed to have been adopted by the corporation
and may be issued and delivered as though the person who signed
such certificate or whose facsimile signature shall have been
used thereon had not ceased to be such officer, transfer agent
or registrar.
SECTION 2. Transfer of Shares: The shares of stock of the
corporation shall be transferable upon its books by the holders
thereof in person or by their duly authorized attorneys or legal
representatives, and upon such transfer the old certificates
shall be surrendered to the corporation by the delivery thereof
to the person in charge of the stock and transfer books and
ledgers, or to such other person as the board of directors may
designate, by whom they shall be cancelled, and new certificates
shall thereupon be issued for the shares so transferred to the
person entitled thereto. A record shall be made of each
transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the
entry of the transfer.
SECTION 3. Dividends: The board of directors may declare
lawful dividends as and when it deems expedient. Before
declaring any dividend, there may be reserved out of the
accumulated profits such sum or sums as the board of directors
from time to time, in its discretion, thinks proper for working
capital or as a reserve fund to meet contingencies or for
equalizing dividends, or for such other purposes as the board of
directors shall think conducive to the interests of the
corporation.
SECTION 4. Lost Certificates: Any person claiming a
certificate of stock to be lost or destroyed shall make an
affidavit or affirmation of that fact, and if requested to do so
by the board of directors of the corporation shall advertise
such fact in such manner as the board of directors may require,
and shall give to the corporation, its transfer agent and
registrar, if any, a bond of indemnity in such sum as the board
of directors may direct, but not less than double the value of
stock represented by such certificate, in form satisfactory to
the board of directors and to the transfer agent and registrar
of the corporation, if any, and with or without sureties as the
board of directors with the approval of the transfer agent and
registrar, if any, may prescribe; whereupon the chairman, the
president, a vice chairman or a vice president and the senior
vice president, corporate finance or a director of finance or
the secretary or an assistant secretary may cause to be issued a
new certificate of the same tenor and for the same number of
shares as the one alleged to have been lost or destroyed. The
issuance of such new certificates shall be under the control of
the board of directors.
SECTION 5. Rules as to Issue of Certificates: The board of
directors may make such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of
certificates of stock of the corporation. It may appoint one or
more transfer agents and/or registrars of transfers, and may
require all certificates of stock to bear the signature of
either or both. Each and every person accepting from the
corporation certificates of stock therein shall furnish the
corporation with a written statement of his or her residence or
post office address, and in the event of changing such residence
shall advise the corporation of such new address.
SECTION 6. Holder of Record Deemed Holder in Fact: The
board of directors shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share or
shares on the part of any other person, whether or not it shall
have express or other notice thereof, save as expressly provided
by law.
SECTION 7. Closing of Transfer Books or Fixing Record Date:
The board of directors shall have the power to close the stock
transfer books of the corporation for a period not exceeding
sixty (60) days preceding the date of any meeting of
stockholders or the date for payment of any dividend or the date
for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect;
provided, however, that in lieu of closing the stock transfer
books as aforesaid, the board of directors may fix in advance a
date, not exceeding sixty (60) days preceding the date of any
meeting of stockholders or the date for the payment of any
dividend, or the date for the allotment of rights, or the date
when any change or conversion or exchange of capital stock shall
go into effect, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such
meeting, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital
stock, and in such case only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to
such notice of, and to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the
corporation after any such record date fixed as aforesaid.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. Contracts, Etc.: How Executed: The board of
directors or such officer or person to whom such power shall be
delegated by the board of directors by resolution, except as in
these by-laws otherwise provided, may authorize any officer or
officers, agent or agents, either by name or by designation of
their respective offices, positions or class, to enter into any
contract or execute and deliver any instrument in the name of
and on behalf of the corporation, and such authority may be
general or confined to specific instances; and, unless so
authorized, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or
engagement, or to pledge its credit or to render it liable
pecuniarily for any purpose or in any amount.
SECTION 2. Loans: No loans shall be contracted on behalf of
the corporation and no negotiable paper shall be issued in its
name, unless and except as authorized by the vote of the board
of directors or by such officer or person to whom such power
shall be delegated by the board of directors by resolution.
When so authorized by the board of directors or by such officer
or person to whom such power shall be delegated by the board of
directors by resolution, any officer or agent of the corporation
may obtain loans and advances at any time for the corporation
from any bank, banking firm, trust company or other institution,
or from any firm, corporation or individual, and for such loans
and advances may make, execute and deliver promissory notes,
bonds or other evidences of indebtedness of the corporation,
and, when authorized as aforesaid to give security for the
payment of any loan, advance, indebtedness or liability of the
corporation, may pledge, hypothecate or transfer any and all
stocks, securities and other personal property at any time held
by the corporation, and to that end endorse, assign and deliver
the same, but only to the extent and in the manner authorized by
the board of directors. Such authority may be general or
confined to specific instances.
SECTION 3. Deposits: All funds of the corporation shall be
deposited from time to time to the credit of the corporation
with such banks, banking firms, trust companies or other
depositaries as the board of directors may select or as may be
selected by any officer or officers, agent or agents of the
corporation to whom such power may be delegated from time to
time by the board of directors.
SECTION 4. Checks, Drafts, Etc.: All checks, drafts or
other orders for the payment of money, notes, acceptances, or
other evidences of indebtedness issued in the name of the
corporation, shall be signed by such officer or officers, agent
or agents of the corporation and in such manner as shall be
determined from time to time by resolution of the board of
directors or by such officer or person to whom such power of
determination shall be delegated by the board of directors by
resolution. Endorsements for deposit to the credit of the
corporation in any of its authorized depositaries may be made,
without any countersignature, by the chairman of the board, the
president, a vice chairman, or any vice president, or the senior
vice president, corporate finance or any director of finance, or
by any other officer or agent of the corporation appointed by
any officer of the corporation to whom the board of directors,
by resolution, shall have delegated such power of appointment,
or by hand-stamped impression in the name of the corporation.
SECTION 5. Transaction of Business: The corporation, or any
division or department into which any of the business or
operations of the corporation may have been divided, may
transact business and execute contracts under its own corporate
name, its division or department name, a trademark or a trade
name.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 1.
(a) Fiscal Year: The fiscal year of the corporation
shall end with the last Sunday of May of each year.
(b) Staff and Divisional Titles: The chief executive
officer may appoint at his or her discretion such persons to
hold the title of staff vice president, divisional president
or divisional vice president or other similar designation.
Such persons shall not be officers of the corporation and
shall retain such title at the sole discretion of the chief
executive officer who may from time to time make or revoke
such designation.
SECTION 2. Notice and Waiver of Notice: Whenever any notice
is required by these by-laws to be given, personal notice to the
person is not meant unless expressly so stated; and any notice
so required shall be deemed to be sufficient if given by
depositing the same in a post office or post box in a sealed
postpaid wrapper, addressed to the person entitled thereto at
the post office address as shown on the stock books of the
corporation, in case of a stockholder, and at the last known
post office address in case of an officer or director who is not
a stockholder; and such notice shall be deemed to have been
given on the day of such deposit. In the case of notice by
private express carrier, telex, facsimile or similar means,
notice shall be deemed to be sufficient if transmitted or sent
to the person entitled to notice or to any person at the
residence or usual place of business of the person entitled to
notice who it is reasonably believed will convey such notice to
the person entitled thereto; and notice shall be deemed to have
been given at the time of receipt at such residence or place of
business. Any notice required by these by-laws may be given to
the person entitled thereto personally and attendance of a
person at a meeting shall constitute a waiver of notice of such
meeting. Whenever notice is required to be given under these by-
laws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall
be deemed equivalent to notice.
SECTION 3. Inspection of Books: The board of directors
shall determine from time to time whether and, if allowed, when
and under what conditions and regulations the accounts, records
and books of the corporation (except such as may, by statute, be
specifically open to inspection), or any of them, shall be open
to the inspection of the stockholders, and the stockholders'
rights in this respect are and shall be restricted and limited
accordingly.
SECTION 4. Construction: All references herein (i) in the
plural shall be construed to include the singular, (ii) in the
singular shall be construed to include the plural and (iii) in
the masculine gender shall be construed to include the feminine
gender, if the context so requires.
SECTION 5. Adjournment of Meetings: If less than a quorum
shall be present at any meeting of the board of directors of the
corporation, or of the executive committee of the board, or
other committee, the meeting may be adjourned from time to time
by a majority vote of members present, without any notice other
than by announcement at the meeting, until a quorum shall
attend. Any meeting at which a quorum is present may also be
adjourned in like manner, for such time or upon such call, as
may be determined by vote. At any such adjourned meeting at
which a quorum may be present, any business may be transacted
which might have been transacted at the meeting originally held
if a quorum had been present thereat.
SECTION 6. Indemnification:
(a) The corporation shall 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 or she 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 the person in connection with such action, suit
or proceeding if the person acted in good faith and in a
manner the person 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 such conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in
a manner which the person 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 such conduct was unlawful.
(b) The corporation shall 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 the person 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 the person in connection with the
defense or settlement of such action or suit if the person
acted in good faith and in a manner the person 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 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 the 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, the person shall be
indemnified or reimbursed against expenses (including
attorneys' fees) actually and reasonably incurred by such
person in connection therewith.
(d) Any indemnification under sub-sections (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 the person has
met the applicable standard of conduct set forth in sub-
sections (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
shall 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 such person is not entitled to be
indemnified by the corporation as authorized in this
section. Such expenses 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) The 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 any such person and
incurred by any such person in any such capacity, or arising
out of his or her status as such, whether or not the
corporation would have the power to indemnify such person
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 this section with respect to the resulting or
surviving corporation as the person 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 an 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 with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted
in good faith and in a manner he or she 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.
SECTION 7. Resolution of Board of Directors Providing for
Issuance of Cumulative Preference Stock: For purposes of these
by-laws the certificate of incorporation shall be deemed to
include any certificate filed and recorded in accordance with
section 151(g) of the Delaware Corporation Law which, in
accordance with said section, sets forth the resolution or
resolutions adopted by the board of directors providing for the
issuance of cumulative preference stock or any series thereof.
ARTICLE VII
AMENDMENTS
SECTION 1. Amendment of By-Laws: All by-laws of the
corporation shall be subject to alteration or repeal, and new by-
laws may be made, either by the stockholders at an annual
meeting or at any special meeting, provided notice of the
proposed alteration or repeal or of the proposed new by-laws be
included in the notice of any such special meeting, or by the
affirmative vote of a majority of the whole board of directors
of the corporation at any regular meeting or at any special
meeting of the board of directors, provided that notice of the
proposed alteration or repeal or of the proposed new by-laws be
included in the notice of any such special meeting; and provided
further that no by-law shall be adopted which shall be in
conflict with the provisions of the certificate of incorporation
or any amendment thereto. By-laws made or altered by the
stockholders or by the board of directors shall be subject to
alteration or repeal either by the stockholders or by the board
of directors; provided, however, that the board of directors
shall have no power or authority to alter or repeal sub-section
(b) of section 5 or sub-section (b) of section 11 of article II
of these by-laws respecting eligibility of officers or employees
of the corporation as members of the board of directors and of
the executive committee of the board, or to make any alteration
in sub-section (a) of section 5 or in sub-section (a) of section
11 of said article II which would reduce the number composing
the board of directors below twelve (12) or the number composing
the executive committee below eight (8); the sole right to make
any such change being reserved to the stockholders. So long as
any class or classes of stock or any one or more series of any
class or classes of stock which have a separate vote as such
class or series for the election of directors by such class or
series shall be outstanding, no alteration, amendment, or repeal
of the provisions of sections 2, 3, 4, 5 and 6 of article I,
sections 1, 5, 8 and 9 of article II, section 7 of article VI,
and article VII of these by-laws which affects adversely the
rights or preferences of any such outstanding class or series of
stock shall be made without the consent or affirmative vote of
the holders of at least two-thirds (2/3) of each such class or
series entitled to vote; provided, however, that any increase or
decrease in the number of directors set forth in the first
sentence of sub-section (a) of section 5 of article II shall not
be deemed adversely to affect such rights or preferences.
MANAGEMENT CONTINUITY AGREEMENT
THIS AGREEMENT is entered into by and between General
Mills, Inc., a Delaware corporation (the "Company"), and
______________ (the "Executive"), as of the 11th day of
December, 1995.
The Board of Directors of the Company (the "Board"), has
determined that it is in the best interests of the Company and
its shareholders to assure that the Company will have the
continued dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as
defined below) of the Company. The Board believes it is
essential to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to
encourage the Executive's full attention and dedication to the
Company currently and in the event of any threatened or pending
Change of Control, and to provide the Executive with
compensation and benefit arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of
the Executive will be satisfied and which are competitive with
those of other corporations. Therefore, in order to accomplish
these objectives, the Board has caused the Company to enter
into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions. (a) The "Effective Date" shall
mean the first date during the Change of Control Period (as
defined in Section 1(b)) on which a Change of Control (as
defined in Section 2) occurs. Anything in this Agreement to
the contrary notwithstanding, if a Change of Control occurs and
if the Executive's employment with the Company is terminated
prior to the date on which the Change of Control occurs, and if
it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a third
party who has taken steps reasonably calculated to effect a
Change of Control or (ii) otherwise arose in connection with or
anticipation of a Change of Control, then for all purposes of
this Agreement the "Effective Date" shall mean the date
immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" shall mean the period
commencing on the date hereof and ending on the third
anniversary of the date hereof; provided, however, that
commencing on the date one year after the date hereof, and on
each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the
"Renewal Date"), unless previously terminated, the Change of
Control Period shall be automatically extended so as to
terminate three years from such Renewal Date, unless at least
60 days prior to the Renewal Date the Company shall give notice
to the Executive that the Change of Control Period shall not be
so extended.
2. Change of Control. For the purpose of this
Agreement, a "Change of Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"))
(a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the 1934 Act) of 20% or more of
either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of then outstanding voting securities of
the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that for purposes of this subsection (a),
the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from the Company; (ii)
any acquisition by the Company; (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company; or (iv) any acquisition by any corporation pursuant to
a transaction which complies with clauses (i), (ii) and (iii)
of subsection (c) of this Section 2; and provided, further,
that if any Person's beneficial ownership of the Outstanding
Company Voting Securities reaches or exceeds 20% as a result of
a transaction described in clause (i) or (ii) above, and such
Person subsequently acquires beneficial ownership of additional
voting securities of the Company, such subsequent acquisition
shall be treated as an acquisition that causes such Person to
own 20% or more of the Outstanding Company Voting Securities;
or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect
to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a "Business
Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals
and entities who were the beneficial owners of the Outstanding
Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation,
a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership,
immediately prior to such Business Combination of the
Outstanding Company Voting Securities, as the case may be, (ii)
no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related
trust) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business
Combination and (iii) at least a majority of the members of the
board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
or
(d) Approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
3. Employment Period. The Company hereby agrees to
continue the Executive in its employ, and the Executive hereby
agrees to remain in the employ of the Company, subject to the
terms and conditions of this Agreement, for the period
commencing on the Effective Date and ending on the second
anniversary of such date (the "Employment Period").
4. Terms of Employment. (a) Position and Duties. (i)
During the Employment Period, (A) the Executive's position
(including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant
of those held, exercised and assigned at any time during the
120-day period immediately preceding the Effective Date and (B)
the Executive's services shall be performed at the location
where the Executive was employed immediately preceding the
Effective Date or any office or location less than 35 miles
from such location.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive agrees to devote reasonable attention
and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive
hereunder, to use the Executive's reasonable best efforts to
perform faithfully and efficiently such responsibilities.
(b) Compensation. (i) Base Salary. During the
Employment Period, the Executive shall receive an annual base
salary ("Annual Base Salary"), which shall be paid at a monthly
rate, at least equal to twelve times the highest monthly base
salary paid or payable, including any base salary or portion
thereof which has been earned but deferred, to the Executive by
the Company and its affiliated companies in respect of the
twelve-month period immediately preceding the month in which
the Effective Date occurs. During the Employment Period, the
Annual Base Salary shall be reviewed no more than 12 months
after the last salary increase awarded to the Executive prior
to the Effective Date and thereafter at least annually. Any
increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this
Agreement. Annual Base Salary shall not be reduced after any
such increase and the term Annual Base Salary as utilized in
this Agreement shall refer to Annual Base Salary as so
increased. As used in this Agreement, the term "affiliated
companies" shall include any company controlled by, controlling
or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base
Salary, the Executive shall be awarded, for each fiscal year
ending during the Employment Period, an annual bonus (the
"Annual Bonus") in cash at least equal to the average of the
Executive's bonuses paid under the Company's Executive
Incentive Plan, or any comparable bonus under any predecessor
or successor plan, for the last three full fiscal years prior
to the Effective Date (annualized in the event that the
Executive was not employed by the Company for the whole of such
fiscal year) (the "Average Annual Bonus"). Each such Annual
Bonus shall be paid no later than the end of the third month of
the fiscal year next following the fiscal year for which the
Annual Bonus is awarded, unless and to the extent that the
Executive shall elect to defer the receipt of all or a portion
of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans.
During the Employment Period, the Executive shall be entitled
to participate in all incentive, savings and retirement plans,
practices, policies and programs applicable generally to other
peer executives of the Company and its affiliated companies,
but in no event shall such plans, practices, policies and
programs provide the Executive with incentive opportunities
(measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate,
than the most favorable of those provided by the Company and
its affiliated companies for the Executive under such plans,
practices, policies and programs as in effect at any time
during the 120-day period immediately preceding the Effective
Date or if more favorable to the Executive, those provided
generally at any time after the Effective Date to other peer
executives of the Company and its affiliated companies.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the
case may be, shall be eligible for participation in and shall
receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical,
prescription, dental, disability, employee life, group life,
accidental death and travel accident insurance plans and
programs) to the extent applicable generally to other peer
executives of the Company and its affiliated companies, but in
no event shall such plans, practices, policies and programs
provide the Executive with benefits which are less favorable,
in the aggregate, than the most favorable of such plans,
practices, policies and programs in effect for the Executive at
any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those
provided generally at any time after the Effective Date to
other peer executives of the Company and its affiliated
companies.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for
all reasonable expenses incurred by the Executive in accordance
with the most favorable policies, practices and procedures of
the Company and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its
affiliated companies.
(vi) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to fringe benefits, including,
without limitation, tax and financial planning services,
payment of club dues, and, if applicable, use of an automobile
and payment of related expenses, in accordance with the most
favorable plans, practices, programs and policies of the
Company and its affiliated companies in effect for the
Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its
affiliated companies.
(vii) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to an office
or offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the
foregoing provided to the Executive by the Company and its
affiliated companies at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable
to the Executive, as provided generally at any time thereafter
with respect to other peer executives of the Company and its
affiliated companies.
(viii) Vacation. During the Employment Period,
the Executive shall be entitled to paid vacation in accordance
with the most favorable plans, policies, programs and practices
of the Company and its affiliated companies as in effect for
the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its
affiliated companies.
5. Termination of Employment. (a) Death or
Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment
Period. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment
Period (pursuant to the definition of Disability set forth
below), it may give to the Executive written notice in
accordance with Section 12(b) of this Agreement of its
intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall
terminate effective on the 30th days after receipt of such
notice by the Executive (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of
the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the
Executive's duties with the Company on a full-time basis for
180 consecutive business days as a result of incapacity due to
mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's
legal representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For
purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive
to perform substantially the Executive's duties with
the Company or one of its affiliates (other than any
such failure resulting from incapacity due to physical
or mental illness), after a written demand for
substantial performance is delivered to the Executive
by the Board or the Chief Executive Officer of the
Company which specifically identifies the manner in
which the Board or Chief Executive Officer believes
that the Executive has not substantially performed the
Executive's duties, or
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and
demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on
the part of the Executive, shall be considered "willful" unless
it is done, or omitted to be done, by the Executive in bad
faith or without reasonable belief that the Executive's action
or omission was in the best interests of the Company. Any act,
or failure to act, based upon authority given pursuant to a
resolution duly adopted by the Board or upon the instructions
of the Chief Executive Officer or a senior officer of the
Company or based upon the advice of counsel for the Company
shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests
of the Company. The cessation of employment of the Executive
shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith
opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean:
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's
position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of
this Agreement, or any other action by the Company
which results in a diminution in such position,
authority or duties or responsibilities, excluding for
this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof
given by the Executive;
(ii) any failure by the Company to comply with any of
the provisions of Section 4(b) of this Agreement, other
than an isolated, insubstantial and inadvertent failure
not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given
by the Executive;
(iii) the Company's requiring the Executive to be
based at any office or location other than as provided
in Section 4(a)(i)(B) hereof or the Company's requiring
the Executive to travel on Company business to a
substantially greater extent than required immediately
prior to the Effective Date;
(iv) any purported termination by the Company of the
Executive's employment otherwise than as expressly
permitted by this Agreement; or
(v) any failure by the Company to comply with and
satisfy Section 12(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination
of "Good Reason" made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason, shall
be communicated by Notice of Termination to the other party
hereto given in accordance with Section 13(b) of this
Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision
so indicated and (iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more
than thirty days after the giving of such notice). The failure
by the Executive or the Company to set forth in the Notice of
Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for
Cause, or by the Executive for Good Reason, the date of receipt
of the Notice of Termination or any later date specified
therein, as the case may be, (ii) if the Executive's employment
is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which
the Company notifies the Executive of such termination and
(iii) if the Executive's employment is terminated by reason of
death of Disability, the Date of Termination shall be the date
of death of the Executive or the Disability Effective Date, as
the case may be.
6. Obligations of the Company upon Termination. (a)
Good Reason; Other Than for Cause, Death or Disability. If,
during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or Disability or
the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of
Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base
Salary through the Date of Termination to the extent
not theretofore paid; and (2) the product of (x) the
higher of (A) the Average Annual Bonus (or, in the
case of a new Executive who has not yet received one
full year's bonus, an amount equal to the
Executive's maximum annual bonus that could be
payable under the Executive Incentive Plan for the
fiscal year that includes the Effective Date) or (B)
the Executive's annual bonus for the last fiscal
year (such higher amount being referred to as the
"Higher Annual Bonus") and (y) a fraction, the
numerator of which is the number of days in the
current fiscal year through the Date of Termination,
and the denominator of which is 365; (the sum of the
amounts described in clauses (1) and (2) shall be
hereinafter referred to as the "Accrued
Obligations"); and
B. the amount equal to the product of (1) three
and (2) the sum of (x) the Executive's Annual Base
Salary and (y) the Higher Annual Bonus; and
C. an amount equal to the excess of (a) the
actuarial equivalent (utilizing actuarial
assumptions no less favorable to the Executive than
the most favorable in effect under the Company's
qualified defined benefit retirement plan (the
"Retirement Plan") and any excess or supplemental
retirement plan in which the Executive participates
(together, the "SERP"), at any time since the day
immediately prior to the Effective Date) of the
benefit under the Retirement Plan and the SERP which
the Executive would receive if the Executive's
employment continued for three years after the Date
of Termination assuming for this purpose that all
accrued benefits are fully vested, and, assuming
that the Executive's compensation in each of the
three years is that required by Section 4(b)(i) and
Section 4(b)(ii), over (b) the actuarial equivalent
of the Executive's actual benefit (paid or payable),
if any, under the Retirement Plan and the SERP as of
the Date of Termination;
(ii) until the earlier to occur of (A) the date three
years after the Executive's Date of Termination, or (B)
the first day of the first month next following the
Executive's 65th birthday, the Company shall continue
benefits to the Executive and/or the Executive's family
at least equal to those which would have been provided
to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv) of
this Agreement if the Executive's employment had not
been terminated or, if more favorable to the Executive,
as in effect generally at any time thereafter with
respect to other peer executives of the Company and its
affiliated companies and their families, provided,
however, that if the Executive becomes reemployed with
another employer and is eligible to receive medical or
other welfare benefits under another employer provided
plan, the medical and other welfare benefits described
herein shall be secondary to those provided under such
other plan during such applicable period of
eligibility; and further subject that if at the Date of
Termination the Executive would not qualify for post-
retirement benefits under the plans and programs then
in effect for the reason that the Executive had not
reached age 55, the Executive shall nevertheless be
entitled to such benefits equal to the benefits the
Executive would have received if the Executive was age
55 at the Date of Termination. For purposes of
determining eligibility (but not the time of
commencement of benefits) of the Executive for retiree
benefits pursuant to such plans, practices, programs
and policies, the Executive shall be considered to have
remained employed until three years after the Date of
Termination and to have retired on the last day of such
period;
(iii) the Company shall, at its sole expense as
incurred, provide the Executive with outplacement
services the scope and provider of which shall be
selected by the Executive in his or her sole
discretion; and
(iv) to the extent not theretofore paid or provided,
the Company shall timely pay or provide to the
Executive any other amounts or benefits required to be
paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice of
contract or agreement of the Company and its affiliated
companies (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated
by reason of the Executive's death during the Employment
Period, this Agreement shall terminate without further
obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and
the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate or
beneficiary, as applicable, in a lump sum in cash within 30
days of the Date of Termination.
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the
Employment Period, this Agreement shall terminate without
further obligations to the Executive, other than for payment of
Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of
Termination.
(d) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated for Cause during the
Employment Period, or if the Executive voluntarily terminates
employment during the Employment Period, excluding a
termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for
Accrued Obligations and the timely payment or provision of
Other Benefits. In such case, all Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of
the Date of Termination.
(e) By the Company more than two years after the
Effective Date. If the Company shall terminate the Executive's
employment for any reason other than for Cause or Disability at
any date that is more than two years after the Effective Date,
the Executive shall be entitled to receive the benefits
specified under clauses (i), (ii), (iii) and (iv) of paragraph
(a) of Section 6, except that the word "three" in subclause B.
of clause (i) and the words "three years" in subclause C. of
clause (i) and clause (ii) shall be replaced with "one" and
"one year," respectively.
(f) By the Executive during the Window Period. Anything
in this Agreement to the contrary notwithstanding, a
termination by the Executive for any reason during the 30-day
period immediately following the first anniversary of the
Effective Date shall be deemed to be a termination for Good
Reason for all purposes of this Agreement, and the Executive
shall be entitled to receive the benefits specified in
paragraph (a) of Section 6, except that the word "three" shall
be replaced with the word "two" in each place where it appears
in said paragraph (a) of Section 6.
7. Non-exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided
by the Company or any of its affiliated companies and for which
the Executive may qualify, nor, subject to Section 13(f), shall
anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are
vested benefits or which the Executive is otherwise entitled to
receive under any plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified
by this Agreement.
8. Full Settlement. The Company's obligation to make
the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim,
right or action which the Company may have against the
Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall
not be reduced whether or not the Executive obtains other
employment. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the
Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment
pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
9. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it
shall be determined that any payment or distribution by the
Company to or for the benefit of the Executive (whether paid or
payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise, but determined without regard
to any additional payments required under this Section 9) (a
"Payment") would be subject to the excise tax imposed by Code
Section 4999 or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-
Up Payment equal to the Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 9(c), all
determinations required to be made under this Section 9,
including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
KPMG Peat Marwick LLP or such other certified public accounting
firm as may be designated by the Executive (the "Accounting
Firm") which shall provide detailed supporting calculations
both to the Company and the Executive within 15 business days
of the receipt of notice from the Executive that there has been
a Payment, or such earlier time as is requested by the Company.
In the event that the Accounting Firm is serving as accountant
or auditor for the individual, entity or group effecting the
Change of Control, the Executive shall appoint another
nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant
to this Section 9, shall be paid by the Company to the
Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Code Section
4999 at the time of the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to
be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 9(c) and the Executive thereafter
is required to make a payment of any Excise Tax, the Accounting
Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by
the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of
any claim by the Internal Revenue Service that, if successful,
would require the payment by the Company of the Gross-Up
Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the 30-day period
following the date on which he or she gives such notice to the
Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the
Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such
claim, the Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in
writing from time to time, including, without
limitation, accepting legal representation with respect
to such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in
order to effectively contest such claim, and
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly
all costs and expenses (including additional interest and
penalties) incurred in connection with such contest and shall
indemnify and hold the Executive harmless, on an after-tax
basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 9(c),
the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo
any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Executive to pay
the tax claimed and sue for a refund or contest the claim in
any permissible manner, and the Executive agrees to prosecute
such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided,
however, that if the Company directs the Executive to pay such
claim and sue for a refund, the Company shall advance the
amount of such payment to the Executive, on an interest-free
basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that
any extension of the statute of limitations relating to payment
of taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect
to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service
or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 9(c), the Executive
becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company's complying
with the requirements of Section 9(c)) promptly pay to the
Company the amount of such refund (together with any interest
paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9(c), a determination is made that
the Executive shall not be entitled to any refund with respect
to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to
the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be
repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be
paid.
10. Confidential Information. The Executive shall hold
in a fiduciary capacity for the benefit of the Company all
secret or confidential information, knowledge or data relating
to the Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by the
Executive during the Executive's employment by the Company or
any of its affiliated companies and which shall not be or
become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment
with the Company, the Executive shall not, without the prior
written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company
and those designated by it. In no event shall an asserted
violation of the provisions of this Section 10 constitute a
basis for deferring or withholding any amounts otherwise
payable to the Executive under this Agreement.
11. Supplemental Trust. The Company has established a
Supplemental Benefits Trust with Norwest Bank Minnesota, N.A.
as Trustee to hold assets of the Company under certain
circumstances as a reserve for the discharge of the Company's
obligations under this Agreement and certain plans of deferred
compensation of the Company. In the event of a Change of
Control as defined in Section 1 hereof, the Company shall be
obligated to immediately contribute such amounts to the Trust
as may be necessary to fully fund all benefits that may become
payable under Sections 6(a), 6(e) or 9 of the Agreement.
Executives shall have the right to demand and secure specific
performance of this provision. All assets held in the Trust
remain subject only to the claims of the Company's general
creditors whose claims against the Company are not satisfied
because of the Company's bankruptcy or insolvency (as those
terms are defined in the Trust Agreement). The Executive does
not have any preferred claim on, or beneficial ownership
interest in, any assets of the Trust before the assets are paid
to the Executive and all rights created under the Trust, as
under this Agreement, are unsecured contractual claims of the
Executive against the Company.
In the event the funding of the Trust described in the
preceding paragraph does not occur, upon written demand by the
Executive given at any time after a Change of Control occurs,
the Company shall deposit in trust with an institutional
trustee (the "Trustee") designated by the Executive in such
demand amounts which may become payable to the Executive
pursuant to Sections 6(a), 6(b) or 9 with irrevocable
instructions to pay amounts to the Executive when due in
accordance with the terms of this Agreement. All fees,
expenses and other charges of the Trustee shall be paid by the
Company. The Trustee shall be entitled to rely conclusively on
the Executive's written statement as to the fact that payments
are due under this Agreement and the amount of such payments.
If the Trustee is not notified that payments are due under this
Agreement within two years and 60 days after receipt of a
deposit hereunder, all amounts deposited with the Trustees and
earnings with respect thereto shall be delivered to the Company
on demand.
12. Successors. (a) This Agreement is personal to the
Executive and without the prior written consent of the Company
shall not be assignable by the Executive otherwise than by will
or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such
succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and
any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of
law, or otherwise.
13. Miscellaneous. (a) This Agreement shall be governed
by and construed in accordance with the laws of the State of
Minnesota, without reference to principles of conflict of laws.
The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other
party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
If to the Company: General Mills, Inc.
Number One General Mills Boulevard
Minneapolis, Minnesota 55426
Attention: General Counsel
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
(c) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign
taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or
the failure to assert any right the Executive or the Company
may have hereunder, including, without limitation, the right of
the Executive to terminate employment for Good Reason pursuant
to Section 5(c)(i)-(v) of this Agreement, shall not be deemed
to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge that,
except as may otherwise be provided under any other written
agreement between the Executive and the Company, the employment
of the Executive by the Company is "at will" and, subject to
Section 1(a) hereof, prior to the Effective Date, the
Executive's employment and/or this Agreement may be terminated
by either the Executive or the Company at any time prior to the
Effective Date, in which case the Executive shall have no
further rights under this Agreement. From and after the
Effective Date this Agreement shall supersede any other
agreement between the parties with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the Executive has hereunto set his or
her hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed
in its name on its behalf, all as of the date first above
written.
[Executive]
GENERAL MILLS, INC.
By:
