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) June 29, 1994
JAMES RIVER CORPORATION OF VIRGINIA
(Exact name of registrant as specified in its charter)
Virginia
(State or other jurisdiction of incorporation)
1-7911 54-0848173
(Commission File Number) (IRS Employer
Identification Number)
120 Tredegar Street, Richmond, Virginia 23219
(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code (804) 644-5411
Item 5. Other Events.
On June 29, 1994, James River Corporation of Virginia
("James River" or the "Company") published a press release
announcing the completion of a public offering of 15,000,000
depositary shares (the "Depositary Shares"), each representing a
one-hundredth interest in a share of James River's Series P 9%
Cumulative Convertible Preferred Stock, $10 par value per share
(the "Series P Preferred Stock"). The shares of Series P
Preferred Stock were deposited with Wachovia Bank of North
Carolina, N.A. ("Wachovia"), as depositary, pursuant to a Deposit
Agreement dated as of June 22, 1994, among James River, Wachovia,
and the holders from time to time of the Depositary Receipts
issued thereunder. The Depositary Shares, the Series P Preferred
Stock, and an indeterminate number of shares of the Company's
common stock, $.01 par value per share, as may be issuable upon
or in connection with the conversion or redemption of the Series
P Preferred Stock were registered under the Securities Act of
1933 by Registration Statements on Form S-3 (Registration No. 33-
53411 and Registration No. 33-54213). James River entered into
an Underwriting Agreement related to the Depositary Shares with
Salomon Brothers Inc, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, and J.P. Morgan Securities Inc. for
themselves and as representatives of the other underwriters named
in the Underwriting Agreement. The Underwriting Agreement,
Articles of Amendment, and Deposit Agreement are filed as
exhibits to this Current Report on Form 8-K. A copy of the press
release is filed herewith as Exhibit 99.
Item 7. Financial Statements and Exhibits.
(c) Exhibits:
1.1 Underwriting Agreement, dated June 22, 1994, among
James River, Salomon Brothers Inc, Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, and J.P. Morgan Securities Inc. --
filed herewith
3.1 Articles of Amendment to the Amended and Restated
Articles of Incorporation of James River
Corporation of Virginia Designating the Series P
9% Cumulative Convertible Preferred Stock ($10.00
par value) -- filed herewith
4.1 Deposit Agreement dated as of June 22, 1994, among
James River, Wachovia Bank of North Carolina,
N.A., as Depositary, and the holders from time to
time of Depositary Receipts issued thereunder --
filed herewith
99 Press release dated June 29, 1994, published by
the registrant -- filed herewith
SIGNATURES
Pursuant to the requirements of the Securities and Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
JAMES RIVER CORPORATION OF VIRGINIA
By:/s/Michael J. Allan
Michael J. Allan
Vice President, Treasurer
Date: June 29, 1994
Exhibit 1.1
JAMES RIVER CORPORATION OF VIRGINIA
UNDERWRITING AGREEMENT
New York, New York
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
James River Corporation of Virginia, a Virginia
corporation (the "Company"), proposes to sell to the underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the respective
number of Depositary Shares ("Shares") representing a one-hundredth
interest in a share of the Company's Preferred Stock, par value $10
per share, identified in Schedule I hereto (the "Preferred
Shares"). The Company also proposes to grant to the Underwriters
an option to purchase such number of additional Shares as is
identified in Schedule I hereto (the "Option Shares"). The
Preferred Shares are to be deposited by or on behalf of the several
Underwriters against delivery of Depositary Receipts ("Depositary
Receipts") to be issued under a Deposit Agreement (the "Deposit
Agreement") dated as of June 22, 1994 among the Company, Wachovia
Bank of North Carolina, N.A., as Depositary (the "Depositary"), and
the holders from time to time of Depositary Receipts issued
thereunder. The Depositary Receipts issued upon such deposit of
the Preferred Shares will evidence up to an aggregate of 15,000,000
Shares plus the number of Option Shares, if any, purchased
hereunder. If the firm or firms listed in Schedule II hereto
include only the firm or firms listed in Schedule I hereto, then
the terms "Underwriters" and "Representatives", as used herein,
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Certain terms used in this Section 1 are
defined in paragraph (c) hereof.
(a) If the offering of the Shares is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is
applicable and, if the offering of the Shares is a Non-Delayed
Offering (as so specified), paragraph (ii) below is applicable.
(i) The Company meets the requirements for the
use of Form S-3 under the Securities Act of 1933, as
amended (the "Act"), and has filed with the Securities
and Exchange Commission (the "Commission") registration
statements (file numbers 33-53411 and 33-54213) on such
Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Shares and
the shares of common stock of the Company, par value $.10
per share, and attached preferred stock purchase rights,
issuable upon redemption or conversion of the Shares (the
"Underlying Securities"). The Company may have filed one
or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has been
furnished previously to you. The registration
statements, as so amended, have become effective. The
offering of the Shares is a Delayed Offering and,
although the Basic Prospectus may not include all the
information with respect to the Shares and the offering
thereof required by the Act and the rules and regulations
of the Commission thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such
material information required by the Act and the rules
and regulations of the Commission thereunder to be
included therein as of the Effective Date; provided,
however, that the Company makes no representations or
warranties as to the information contained in or omitted
from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with
the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto). The
Company will next file with the Commission pursuant to
Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in registration statements
No. 33-53411 and No. 33-54213 relating to the Shares and
the offering thereof. As filed, such final prospectus
supplement shall include all required material
information with respect to the Shares and the offering
thereof.
(ii) The Company meets the requirements for the
use of Form S-3 under the Act and has filed with the
Commission registration statements (file numbers 33-53411
and 33-54213) on such Form, including a basic prospectus,
for registration under the Act of the offering and sale
of the Shares and the shares of common stock of the
Company, par value $0.10 per share, and attached
preferred stock purchase rights, issuable upon redemption
or conversion of the Shares (the "Underlying
Securities"). The Company may have filed one or more
amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission
either (x) a final prospectus supplement relating to the
Shares in accordance with Rules 430A and 424(b)(1) or
(4), or (y) prior to the effectiveness of the
registration statements an amendment to such registration
statements including the form of final prospectus
supplement. In the case of clause (x), the Company has
included in such registration statements as amended at
the Effective Date, all material information (other than
Rule 430A Information) required by the Act and the rules
and regulations of the Commission thereunder to be
included in the Final Prospectus with respect to the
Shares and the offering thereof; provided, however, that
the Company makes no representations or warranties as to
the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by
or on behalf of any Underwriter through the
Representatives specifically for use in connection with
the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto). As filed,
such final prospectus supplement or such amendment and
form of final prospectus supplement shall contain all
Rule 430A Information, together with all other such
required material information, with respect to the Shares
and the offering thereof.
(b) On the Effective Date, the Registration Statement
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date,
the Final Prospectus (and any supplement thereto) will, comply in
all material respects with the applicable requirements of the Act
and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the respective rules and regulations of the Commission
thereunder; on the Effective Date and on the Closing Date, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Final Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date, the Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement or the Final Prospectus
(or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that Registration Statements No. 33-53411 and
No. 33-54213 and any post-effective amendment or amendments thereto
became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in registration
statements No. 33-53411 and No. 33-54213 at the Effective Date.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Shares and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus
supplement relating to the Shares that is first filed pursuant to
Rule 424(b) after the Execution Time, together with the Basic
Prospectus or, if, in the case of a Non-Delayed Offering, no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Shares, including the Basic Prospectus,
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean, collectively, the registration
statements referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective)
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall
also mean such registration statements as so amended. Such term
shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such
rules or regulations of the Commission under the Act. "Rule 430A
Information" means information with respect to the Shares and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before any Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act on or
before any Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after any Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of securities which is intended to commence
promptly after the effective date of a registration statement, with
the result that, pursuant to Rules 415 and 430A, all information
(other than Rule 430A Information) with respect to the securities
so offered is required under the rules and regulations of the
Commission under the Act to be included in such registration
statement at the effective date thereof. A "Delayed Offering"
shall mean an offering of securities pursuant to Rule 415 which
does not commence promptly after the effective date of a
registration statement, with the result that only information
required pursuant to Rule 415 need be included in such registration
statement at the effective date thereof with respect to the
securities so offered. Whether the offering of the Shares is a
Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
(d) The Company confirms as of the date hereof that the
Company is in compliance with all provisions of Section 1 of Laws
of Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it
commences engaging in business with the government of Cuba or with
any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the
Commission or with the Florida Department of Banking and Finance
(the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba
changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
2. Purchase and Sale. (a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto the number of Shares set forth opposite such Underwriter's
name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Shares pursuant to delayed delivery
arrangements, the respective number of Shares to be purchased by
the Underwriters shall be as set forth in Schedule II hereto less
the respective amounts of Contract Shares determined as provided
below. Shares to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Shares" and Shares to be
purchased pursuant to Delayed Delivery Contracts as hereinafter
provided are herein called "Contract Shares."
(b) If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase Shares
from the Company pursuant to delayed delivery contracts ("Delayed
Delivery Contracts"), substantially in the form of Schedule III
hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to
the Representatives, for the account of the Underwriters, on the
Closing Date, the fee set forth in Schedule I hereto with respect
to Shares for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery
Contracts in all cases where sales of Contract Shares arranged by
the Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum number set forth in
Schedule I hereto and the aggregate number of Contract Shares may
not exceed the maximum number set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts. The number
of Shares to be purchased by each Underwriter as set forth in
Schedule II hereto shall be reduced by a number which shall bear
the same proportion to the total number of Contract Shares as the
number of Shares set forth opposite the name of such Underwriter
bears to the aggregate number set forth in Schedule II hereto,
except to the extent that you determine that such reduction shall
be otherwise than in such proportion and so advise the Company in
writing; provided, however, that the total number of Shares to be
purchased by all Underwriters shall be the aggregate number set
forth in Schedule II hereto less the aggregate number of Contract
Shares.
(c) Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the
Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, all or part of the Option
Shares at the purchase price per Share set forth in Schedule I
hereto. Said option may be exercised only to cover over-allotments
in the sale of the Shares by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Final Prospectus
upon written or telegraphic notice by the Representatives to the
Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option and the settlement
date. Delivery of certificates for the Option Shares, and payment
therefor, shall be made as provided in Section 3 hereof. The
number of Option Shares to be purchased by each Underwriter shall
be the same percentage of the total number of Option Shares to be
purchased by the several Underwriters as such Underwriter is
purchasing of the Shares, subject to such adjustments as you in
your absolute discretion shall make to eliminate any fractional
shares.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Shares and the Option Shares (if the option provided
for in Section 2(c) hereof shall have been exercised on or before
the third business day prior to the Closing Date) shall be made on
the date and at the time specified in Schedule I hereto, which date
and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 8 hereof (such date and
time of delivery and payment for the Underwriters' Shares being
herein called the "Closing Date"). Delivery of the Underwriters'
Shares shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof to or upon the order of the Company by certified or
official bank check or checks drawn on or by a New York Clearing
House bank and payable in next day funds; provided, however, that
payment of the purchase price for the Underwriters' Shares will be
made, at the option and expense of the Company, by the
Representatives on the Closing Date in immediately available funds.
Delivery of the Underwriters' Shares shall be made at such location
as the Representatives shall reasonably request at least one
business day in advance of the Closing Date and payment for the
Shares shall be made at the office specified in Schedule I hereto.
Certificates for the Underwriters' Shares shall be registered in
such names and in such denominations as the Representatives may
request not less than three full business days in advance of the
Closing Date.
The Company agrees to have the Underwriters' Shares
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM, New
York City time, on the business day prior to the Closing Date.
If the option provided for in Section 2(c) hereof is
exercised after the third business day prior to the Closing Date,
the Company will deliver (at the expense of the Company) to the
Representatives, at Seven World Trade Center, New York, New York
(or such other place as the Company and the Representatives agree),
on the date specified by the Representatives (which shall be within
three business days after exercise of said option), certificates
for the Option Shares in such names and denominations as the
Representatives shall have requested against payment of the
purchase price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a New
York Clearing House bank and payable in next day funds; provided
however, that payment of the purchase price for the Option Shares
will be made, at the option and expense of the Company, by the
Representatives on such specified date in immediately available
funds. If settlement for the Option Shares occurs after the
Closing Date, the Company will deliver to the Representatives on
the settlement date for the Option Shares, and the obligation of
the Underwriters to purchase the Option Shares shall be conditioned
upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 5 hereof.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Shares, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus (other than,
subject to Section 4(f), any prospectus supplement relating to the
offering of other securities registered under the Registration
Statement and other than any document required to be filed under
the Exchange Act that upon filing is deemed to be incorporated by
reference therein) unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence reasonably satisfactory to the Representatives of such
timely filing. The Company will advise the Representatives
promptly after it shall receive notice or obtain knowledge thereof
(i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Shares, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission
for any amendment of the Registration Statement or supplement to
the Final Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares or the Underlying
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented
would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in
the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules and regulations of the
Commission thereunder, the Company promptly will prepare and file
with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of the Company
and its subsidiaries which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, five copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay
the expenses of printing or other production of all documents
relating to the offering.
(e) The Company will use its best efforts to qualify the
Shares for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution
of the Shares, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation, to
execute a general consent to service of process in any state or to
otherwise subject itself to taxation (other than stock transfer
taxes) in connection with any such qualification, and will arrange
for the determination of the legality of the Shares for purchase by
institutional investors.
(f) Except to the extent specified on Schedule I hereto,
until the business date set forth on Schedule I hereto, the Company
will not, without the consent of the Representatives, offer, sell
or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any equity securities
issued by the Company (other than the Shares or other securities
issued in the ordinary course of business).
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Shares shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the
Execution Time and Closing Date, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statement will
become effective not later than (i) 6:00 PM New York City time, on
the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 12:00 Noon New York City time on the business day
following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York
City time on such date; if filing of the Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the
manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the
Representatives the opinion of McGuire, Woods, Battle & Boothe,
counsel for the Company, dated the Closing Date, to the effect
that:
(i) Each of the Company, James River Paper
Company, Inc. ("Paper") and James River International
Holdings, Ltd. ("International") has been duly organized
and is validly existing and in good standing under the
laws of the Commonwealth of Virginia; each of the
Company, Paper and International has corporate power and
authority to conduct its business as described in the
Final Prospectus; and each of the Company and Paper is
duly qualified to do business and is in good standing in
each jurisdiction in which it owns or leases a material
amount of real property;
(ii) Each of Jamont Holdings N.V. and Jamont N.V.
has been duly organized and is validly existing under the laws
of The Netherlands;
(iii) The authorized capital stock of the
Company is as set forth in the Final Prospectus; and the
Preferred Shares, the Shares, the Depositary Receipts,
the Underlying Securities and the Deposit Agreement
conform to the description thereof contained in the Final
Prospectus;
(iv) The Preferred Shares have been duly
authorized and, when issued and delivered to and paid for
by the Underwriters pursuant to this Agreement, will have
been validly issued and will be fully paid and
nonassessable and not subject to any preemptive or other
right to subscribe for or purchase the Preferred Shares;
(v) The Underlying Securities have been duly
authorized. The shares of the Company's Common Stock,
$.10 per value per share, initially reserved for issuance
upon conversion or redemption of the Preferred Shares
and, when issued upon conversion or redemption of the
Preferred Shares in accordance with the terms of the
Articles of Amendment creating the Preferred Shares, will
be validly issued, fully paid and nonassessable and will
not be subject to any preemptive or similar rights;
(vi) The Articles of Amendment creating the
Preferred Shares have been duly filed with and made
effective by the State Corporation Commission of the
Commonwealth of Virginia;
(vii) The Depositary Receipts, assuming that
they have been duly executed and delivered by the
Depositary against the deposit of the Preferred Shares
and in accordance with the provisions of the Deposit
Agreement, will be validly issued and will entitle the
holders thereof to the rights specified therein and in
the Deposit Agreement, subject as to enforcement to
general equity principles;
(viii) All of the outstanding shares of capital
stock of Paper and International have been duly
authorized and validly issued, are fully paid and non-
assessable and are owned beneficially (except as
otherwise stated in the Final Prospectus) by the Company
subject to no perfected mortgage, pledge, lien,
encumbrance, charge or adverse claim and, to the
knowledge of such counsel, any other mortgage, pledge,
lien, encumbrance, charge or adverse claim;
(ix) All of the outstanding shares of capital
stock of JAMONT Holdings N.V. and JAMONT N.V. have been
duly authorized and validly issued, and are non-
assessable, assuming the full consideration required to
be paid upon the issuance thereof was paid. Based solely
upon counsel's review of the relevant company's
shareholder register, International owns 50% of the
shares of JAMONT Holdings N.V. and JAMONT Holdings N.V.
owns 86.4% of the shares of JAMONT N.V., and such shares
are subject to no pledge or usufruct.
(x) The Registration Statement has become
effective under the Act; any required filing of the Basic
<PAGE>
Prospectus, any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant to Rule 424(b)
has been made in the manner and within the time period required by
Rule 424(b); and to the best knowledge of such counsel no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been issued
and no proceeding for that purpose has been instituted or, to the
knowledge of such counsel, threatened under the Act;
(xi) The Registration Statement and the Final
Prospectus, and any amendment or supplement thereto
(other than the financial statements and other financial
and statistical data therein, as to which such counsel
need express no opinion), comply as to form in all
material respects with the requirements of the Act and
the rules and regulations of the Commission thereunder;
(xii) The descriptions in the Registration
Statement and the Final Prospectus of statutes, legal and
governmental proceedings, contracts and other documents
are accurate in all material respects and fairly present
the information required to be shown; and such counsel do
not know of any statutes or legal or governmental
proceedings required to be described in the Final
Prospectus that are not described as required, or of any
contracts or documents of a character required to be
described in the Registration Statement or Final
Prospectus (or required to be filed under the Exchange
Act if upon such filing they would be incorporated, in
whole or in part, by reference therein) or to be filed as
exhibits to the Registration Statement that are not
described and filed as required;
(xiii) This Agreement, the Deposit Agreement and
any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company; the performance of
this Agreement, the Deposit Agreement and any Delayed
Delivery Contracts and the consummation of the
transactions herein contemplated, will not result in a
breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any
agreement or instrument known to such counsel to which
the Company is a party or by which it is bound or to
which any of the property of the Company is subject, the
Company's Articles of Incorporation, as amended to date,
or by-laws, or any order, rule or regulation known to
such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or
order of, or filing with, any court or governmental
agency or body is required for the consummation of the
transactions contemplated by this Agreement, the Deposit
Agreement or in any Delayed Delivery Contract, except
such as have been obtained under the Act and such as may
be required under state securities laws in connection
with the purchase and distribution of such Shares by the
Underwriters; provided that no opinion is called for with
respect to any such consent, approval, authorization or
order required to be obtained by any Underwriters; and
Such counsel shall also state that they have no reason to
believe that at the Effective Date the Registration
Statement contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus
includes any untrue statement of a material fact or omits
to state a material fact necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; the documents from which
information is incorporated by reference in the Final
Prospectus, when they became effective or were filed with
the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act
and of the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; it being
understood that such counsel need express no opinion as
to the financial statements or other financial and
statistical information included in any of the documents
mentioned in this sentence.
As to the matters set forth in clauses (ii) and (ix),
McGuire, Woods, Battle & Boothe may rely on, or the Company shall
have furnished to the Representatives, a separate opinion from
DeBrauw Blackstone Westbroek, special Dutch counsel for the
Company, dated the Closing Date, substantially to the effect set
forth in such clauses.
References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from counsel
for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Shares, any
Delayed Delivery Contracts, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and such
counsel shall have received such papers and information as they
request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received the opinion,
dated the Closing Date, of counsel for the Depositary, to the
effect that:
(i) The Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and
is a valid and binding agreement of the Depositary; and
(ii) The Depositary Receipts have been duly
executed and delivered by the Depositary in accordance
with the provisions of the Deposit Agreement.
(e) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chairman, Chief Executive Officer, an Executive Vice President, a
Senior Vice President or a Vice President and by the principal
financial or accounting officer or treasurer, dated the Closing
Date, to the effect that, to the best of their knowledge, based
upon reasonable investigation:
(i) the representations and warranties of the
Company in this Agreement are true and correct, as if
made at and as of the Closing Date, and the Company has
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceeding for that purpose has been instituted or is
threatened, by the Commission; and
(iii) since the date of the most recent
financial statements included in the Final Prospectus
(exclusive of any supplement thereto), there has been no
material adverse change in the condition (financial or
other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(f) At the Closing Date, Coopers & Lybrand shall have
furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they
are independent certified public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion, the audited consolidated
financial statements of the Company and its subsidiaries
and schedules included or incorporated by reference in
the Registration Statement and reported on by them comply
in form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and
the related published rules and regulations.
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the
Company and its subsidiaries; their review in accordance
with standards established by the American Institute of
Certified Public Accountants for a review of interim
financial information as described in SAS No. 71, Interim
Financial Information, of the unaudited interim financial
information; carrying out certain specified procedures
(but not an examination in accordance with generally
accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the
comments set forth in such letter; a reading of the
minutes of the meetings of the shareholders, directors
and the committees of the Board of Directors of the
Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for
financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to
the date of the most recent audited financial statements
in or incorporated in the Final Prospectus, nothing came
to their attention which caused them to believe that:
(1) the unaudited consolidated financial
statements included in any Quarterly Reports
on Form 10-Q which are incorporated by
reference in the Registration Statement, do
not comply as to form in all material respects
with the applicable accounting requirements of
the Exchange Act as it applies to Form 10-Q
and the related published rules and
regulations, and that any material
modifications should be made to such unaudited
consolidated financial statements for them to
be in conformity with generally accepted
accounting principles, and
(2) with respect to the period
subsequent to the date of the most recent
financial statements (other than any capsule
information), audited or unaudited, in or
incorporated in the Registration Statement and
the Final Prospectus, there were any material
change or any change other than items
occurring in the ordinary course of business,
at a specified date not more than five
business days prior to the date of the letter,
in the common stock, consolidated long-term
debt, consolidated net current assets or
shareholders' equity as compared with amounts
shown in the most recent unaudited
consolidated balance sheet included or
incorporated in the Registration Statement and
the Final Prospectus, or for the period from
the date of the most recent financial
statements included or incorporated in the
Registration Statement and the Final
Prospectus to such specified date there were
any material decreases, as compared with the
corresponding period in the preceding year, in
consolidated net sales or in the total or per-
share amounts of income before extraordinary
items or of net income, except for in all
instances for changes or decreases that the
Registration Statement, or documents
incorporated by reference therein, disclose as
having occurred or which may occur, or that
are set forth in such letter, in which case
the letter shall be accompanied by an
explanation by the Company as to the
significance thereof unless said explanation
is not deemed necessary by the
Representatives; and
(3) the amounts included in any
unaudited "capsule" information included or
incorporated in the Registration Statement and
the Final Prospectus do not agree with the
amounts set forth in the unaudited financial
statements for the same periods or were not
determined on a basis substantially consistent
with that of the corresponding amounts in the
audited financial statements included or
incorporated in the Registration Statement and
the Final Prospectus;
(iii) in addition to their audit referred to in
their reports incorporated by reference in the
Registration Statement and Final Prospectus and the
procedures referred to in (ii) above, they have performed
certain other specified procedures as a result of which
they determined that certain information of an
accounting, financial or statistical nature (which is
limited to accounting, financial or statistical
information derived from the general accounting records
of the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in
Exhibit 12.1 to the Registration Statement, including the
information included or incorporated in Items 1, 2, 6, 7
and 11 of the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Final
Prospectus, and the information included in the
"Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form
10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions
of legal interpretation.
(iv) if unaudited pro forma financial
statements are included or incorporated by reference in
the Registration Statement and the Final Prospectus, on
the basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company
and the acquired company who have responsibility for
financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply as to form in all material
respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at
the Execution Time, Coopers & Lybrand shall have furnished to the
Representatives a letter or letters, dated as of the Execution
Time, in form and substance satisfactory to the Representatives, to
the effect set forth above.
(g) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto), there shall not
have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 5 or (ii) any
change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Shares as contemplated
by the Registration Statement (exclusive of any amendment thereof)
and the Final Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not
have been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purpose of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
(j) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Shares arranged by
the Underwriters have been approved by the Company.
(k) At the Closing Time, the Shares and the Underlying
Securities shall have been approved for listing on the New York
Stock Exchange.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and as
provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by
the Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale of
the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied, because of any termination
pursuant to Section 9 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement
herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company will reimburse
the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the
proposed purchase and sale of the Shares.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and
each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the
registration of the Shares as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or
on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof.
This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in connection with the preparation of the
documents referred to in the foregoing indemnity, and agrees to
reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability
or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof, but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification and reimbursement obligations
provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought
(in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including not more than two
local counsels), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets
of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying
party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize in writing the
indemnified party to employ separate counsel at the expense of the
indemnifying party. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written
consent, but if settled with such consent, the indemnifying party
agrees to indemnify the indemnified party from and against any loss
or liability by reason of such settlement. An indemnifying party
will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party for any reason,
the Company and the Underwriters agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal
or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which
the Company and one or more of the Underwriters may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company and by the Underwriters from the offering
of the Shares; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Shares) be responsible
for any amount in excess of the underwriting discount or commission
applicable to the Shares purchased by such Underwriter hereunder.
If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company
and of the Underwriters in connection with the statements or
omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses), and benefits received by
the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth
on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify
such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder (other than under
this paragraph (d)) or otherwise. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Shares
agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the
number of Shares set forth opposite their names in Schedule II
hereto bears to the aggregate number of Shares set forth opposite
the names of all the remaining Underwriters) the Shares which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate
number of Shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
number of Shares set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Shares, and if such
nondefaulting Underwriters do not purchase all the Shares, this
Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall
be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any
other documents or arrangements may be effected. Nothing contained
in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter
for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company prior to delivery of and payment for
the Shares, if after the Execution Time and prior to such time (i)
trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established
on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or material escalation of
hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it,
in the judgment of the Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the Shares
as contemplated by the Final Prospectus (exclusive of any
supplement thereto).
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the
Shares. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telecopied and confirmed to them, at
the address specified in Schedule I hereto; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to
it at 120 Tredegar Street, Richmond, Virginia 23219, telefax
number: (804) 649-4317, attention of the Senior Vice President,
Corporate Finance and Chief Financial Officer.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have any
right or obligation hereunder.
In all dealings with the Company under this Agreement,
you shall act on behalf of each of the several Underwriters, and
any action under this Agreement taken by you or by any one of you
designated in Schedule II hereto will be binding upon all the
Underwriters.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent
a binding agreement among the Company and the several Underwriters.
Alternatively, the execution of this Agreement by the Company and
its acceptance by or on behalf of the Underwriters may be evidenced
by an exchange of telecopied or other written communications.
Very truly yours,
JAMES RIVER CORPORATION
OF VIRGINIA
By:/s/Stephen E. Hare
Title:Senior Vice President, Corporate
Finance and Chief Financial Officer
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Salomon Brothers Inc
Merrill Lynch, Pierce, Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
By: Salomon Brothers Inc
By:/s/Jeffrey R. Cameron
Title:Vice President
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated June 22, 1994
Registration Statements No. 33-53411 and 33-54213
Representatives(s): Salomon Brothers Inc
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
J.P. Morgan Securities Inc.
Title of Preferred Stock: Series P 9% Cumulative Convertible
Preferred Stock (the "DECS")
Number of Depositary Shares: 15,000,000
Purchase Price per Depositary Share: $17.25
Number of Option Shares: 1,666,666
Certain Terms of the Preferred Stock:
Redemption Provisions:
The DECS are not redeemable by the Company before July
1, 1997 (the "Initial Redemption Date"). At any time
or from time to time on or after the Initial Redemption
Date and before July 1, 1998 (the "Mandatory Conversion
Date"), the Company may redeem the outstanding DECS in
whole or in part. Upon any such redemption, the holder
of record of the DECS will receive, in exchange for
each DECS so called, a number of shares of Common Stock
equal to the greater of (i) the Call Price of the DECS
in effect on the date of redemption divided by the
Current Market Price of the Common Stock determined as
of the date which is one trading day before the public
announcement of the call for redemption or (ii) 85.47
shares of Common Stock, subject to adjustment to the
same extent as the Optional Conversion Rate, as defined
and described in the Final Prospectus (equivalent to
the Conversion Price of $20.1825 per share of Common
Stock). The "Call Price" of each DECS is the sum of
(i) $1763.81 on and after the Initial Redemption Date
through September 30, 1997, $1754.11 on and after
October 1, 1997 through December 31, 1997, $1744.41 on
and after January 1, 1998 through March 31, 1998,
$1734.70 on and after April 1, 1998 through May 31,
1998 and $1725.00 on and after June 1, 1998 until the
Mandatory Conversion Date, and (ii) all accrued and
unpaid dividends thereon to the date fixed for
redemption. Notwithstanding the foregoing, if the date
fixed for redemption occurs after a record date for a
quarterly dividend and before the corresponding payment
date, such dividend shall be paid on the payment date
and the Call Price shall not include the amount of the
dividend to be so paid.
Conversion Provisions:
(a) On the Mandatory Conversion Date, each
outstanding DECS will convert (the "Mandatory
Conversion") automatically into shares of Common Stock
at the Common Equivalent Rate and the right to receive
an amount of cash equal to all accrued and unpaid
dividends on such DECS. Notwithstanding the foregoing,
if the Mandatory Conversion Date occurs after a record
date for a quarterly dividend and before the
corresponding payment date, such dividend shall be paid
on the payment date rather than on the Mandatory
Conversion Date. The "Common Equivalent Rate" is
initially one hundred shares of Common Stock for each
DECS, subject to adjustment in the event of certain
stock dividends or distributions, subdivisions, splits,
combinations, issuances of certain rights or warrants,
or distributions of certain assets with respect to the
Common Stock. The Mandatory Conversion, however, is
subject to the Company's right to redeem all or a
portion of the outstanding DECS on or after the Initial
Redemption Date and before the Mandatory Conversion
Date, and to the conversion of the DECS at the option
of the holder at any time before the Mandatory
Conversion Date.
(b) The DECS are convertible, in whole or in
part, at the option of the holder at any time before
the Mandatory Conversion Date, unless previously
redeemed, into 85.47 of a share of Common Stock for
each DECS (equivalent to a Conversion Price of $20.8125
per share of Common Stock), subject to adjustment in
the event of certain stock dividends or distributions,
subdivisions, splits, combinations, issuances of
certain rights or warrants or distributions of certain
assets with respect to the Common Stock.
Dividend Rate:
$155.25 per share, per annum.
Dividend payment Dates:
January 1, April 1, July 1 and October 1 of each year,
beginning October 1, 1994.
The Depositary Shares are to be offered to the public at the Public
Offering Price specified below, and to dealers at prices which
represent concessions not in excess of the Dealer Concession set
forth below, and any Underwriter may allow and such dealers may
reallow concessions not in excess of the Reallowance Concession set
forth below.
Public Offering Price: $17.25
Dealer Concession: $.30
Reallowance Concession: $.02
Closing Date, Time and Location:
(i) Office for Checking Shares: on the business day prior
to the Closing Date at 1:00 PM New York City time at a
location in New York, New York to be determined by the
Company
(ii) Office for Payment of Shares: at the offices of
McGuire, Woods, Battle & Boothe in Richmond, Virginia,
or such other location as the parties may agree in
writing
(iii) Date and Time of Closing: June 29, 1994 at 10:00 AM
New York City time at the offices of McGuire, Woods,
Battle & Boothe in Richmond, Virginia, or such other
date, time or location as the parties may agree in
writing
Type of offering: Delayed Offering
Delayed Delivery arrangements: None
Fee:
Minimum number of Shares of each contract:
Maximum number of Shares of all contracts:
Date referred to in Section 4(f) after which the
Company may offer or sell shares of the Common
Stock of the Company, any securities convertible
into or exercisable or exchangeable for such
Common Stock, or any rights to such Common Stock
without the consent of the Representative(s):
September 20, 1994
Modification of Section 4(f): The parties agree that the
term equity securities means shares of the Common
Stock of the Company, any securities convertible
into or exercisable or exchangeable for such Common
Stock, or any rights to such Common Stock.
Modification of items to be covered by the letter from
Coopers & Lybrand delivered pursuant to
Section 5(f) at the Execution Time: None
<PAGE>
SCHEDULE II
Name Number of
Depositary Shares
Salomon Brothers Inc 3,016,668
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 3,016,666
J.P. Morgan Securities, Inc. 3,016,666
CS First Boston Corporation 850,000
Goldman, Sachs & Co. 850,000
Kidder, Peabody & Co. Incorporated 850,000
Scott & Stringfellow, Inc. 850,000
UBS Securities Inc. 850,000
S.G. Warburg & Co., Inc. 850,000
Wheat First Butcher Singer 850,000
Total 15,000,000
<PAGE>
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from James
River Corporation of Virginia (the "Company"), and the Company
agrees to sell to the undersigned on , 19 , (the "Delivery
Date"), _______________ number of Depositary Shares (the "Shares")
representing a one-hundredth interest in a share of the Company's
Series P 9% Cumulative Convertible Preferred Stock offered by the
Company's Prospectus dated June 22, 1994, and related Prospectus
Supplement dated June 22, 1994, receipt of a copy of which is
hereby acknowledged, at a purchase price of $17.25 per share and on
the further terms and conditions set forth in this contract.
Payment for the Shares to be purchased by the
undersigned shall be made on or before 11:00 AM, New York City
time, on the Delivery Date to or upon the order of the Company in
New York Clearing House (next day) funds, at your office or at such
other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Shares in
definitive fully registered form and in such authorized
denominations and registered in such names as the undersigned may
request by written or telegraphic communication addressed to the
Company not less than five full business days prior to the Delivery
Date. If no request is received, the Shares will be registered in
the name of the undersigned and issued in a denomination equal to
the aggregate number of shares of Shares to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of
and make payment for Shares on the Delivery Date, and the
obligation of the Company to sell and deliver Shares on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Shares to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the
date hereof, shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject, and
(2) the Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such number of shares of
the Shares to be sold to them pursuant to the Underwriting
Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the
Underwriters, the Company will mail or deliver to the undersigned
at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Shares,
and the obligation of the Company to cause the Shares to be sold
and delivered, shall not be affected by the failure of any
purchaser to take delivery of and make payment for the Shares
pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
It is understood that acceptance of this contract and
other similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on a first come, first
served basis. If this contract is acceptable to the Company, it is
required that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date
first above written, when such counterpart is so mailed or
delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
(Name of Purchaser)
By:
(Signature and Title of Officer
(Address)
Accepted:
James River Corporation
of Virginia
By:
(Authorized Signature)
Exhibit 3.1
JAMES RIVER CORPORATION OF VIRGINIA
____________________
Articles of Amendment to
the Amended and Restated Articles of Incorporation
Designating the
Series P 9% Cumulative Convertible Preferred Stock
(Par Value $10.00 Per Share)
__________________
I. The name of the Corporation is James River Corporation
of Virginia (the "Corporation").
II. Pursuant to Sections 13.1-639 and 13.1-689 of the
Virginia Stock Corporation Act, the Board of Directors of the
Corporation effective as of June 10, 1994 duly adopted the
following amendment to the Amended and Restated Articles of
Incorporation of the Corporation, adding Article XIII thereto
which sets forth the designation and number of shares of a series
of Preferred Stock of the Corporation and certain preferences,
limitations and relative rights thereof and authorized a senior
executive officer of the Corporation to determine the remaining
preferences, limitations and relative rights thereof within
limits specifically prescribed by the Board of Directors and such
senior executive officer made such determinations on June 21,
1994.
Article XIII
166,667 authorized but unissued shares of Preferred Stock
($10.00 par value) are designated as a series of Preferred Stock
to be called the Series P 9% Cumulative Convertible Preferred
Stock (the "DECS"), with the following voting powers,
limitations, rights and preferences:
A. Dividends. (1) The holders of the DECS shall be
entitled to receive when, as and if declared by the Board of
Directors of the Corporation out of funds legally available
therefor, cumulative preferential dividends from the issue date
of such shares, at the annual rate of $155.25 per share (rounded
upward to the nearest whole $.01), and no more, payable quarterly
for each share held, payable in arrears on the first day of each
January, April, July and October, respectively (each such date
being hereinafter referred to as a "Dividend Payment Date") or,
if any Dividend Payment Date is not a business day, then the
Dividend Payment Date shall be the next succeeding business day;
provided, however, that with respect to any dividend period
during which a redemption occurs, the Corporation may, at its
option, declare accrued dividends to, and pay such dividends on,
the redemption date, in which case such dividends would be
payable on the redemption date in cash to the holders of the DECS
as of the record date for such dividend payment and such accrued
dividends would not be included in the calculation of the related
Call Price (as hereinafter defined). Each dividend on the shares
of the DECS shall be payable to holders of record as they appear
on the stock books of the Corporation on such record dates as
shall be fixed by the Board of Directors of the Corporation. The
first dividend payment shall be for the period from the issue
date of the DECS to and including September 30, 1994 and shall be
payable on October 1, 1994. Dividends (or amounts equal to
accrued and unpaid dividends) payable on the DECS for any period
other than a quarterly dividend period shall be computed on the
basis of a 360-day year of twelve 30-day months.
Dividends on the DECS shall accrue (whether or not the
Corporation has earnings, whether or not there are funds legally
available for the payment of such dividends and whether or not
such dividends are declared) on a daily basis from the previous
Dividend Payment Date, except that the first dividend shall
accrue from the date of issuance of the DECS. Dividends
accumulate to the extent they are not paid on the Dividend
Payment Date for the quarter for which they accrue. Accumulated
unpaid dividends shall not bear interest.
(2) No dividend whatsoever shall be declared or paid
upon, or any sum set apart for the payment of dividends upon, any
shares of the DECS or Parity Stock for any dividend period unless
all dividends for all past dividend periods have been declared
and paid upon, or declared and a sufficient sum set apart for the
payment of such dividends upon, all shares of the DECS and Parity
Stock outstanding.
(3) Unless full cumulative dividends (to the extent
that the amount thereof shall have become determinable) on all
outstanding shares of the DECS and any outstanding shares of
Parity Stock due for all past dividend periods shall have been
declared and paid, or declared and a sum sufficient for the
payment thereof set apart, then, subject to the rights of holders
of shares of previously issued series of Preferred Stock (a) no
dividend (other than a dividend payable solely in Junior Stock)
shall be declared or paid upon, or any sum set apart for the
payment of dividends upon, any shares of Junior Stock; (b) no
other distribution shall be made upon any shares of Junior Stock;
(c) no shares of Junior Stock or any other series of Preferred
Stock shall be purchased, redeemed or otherwise acquired for
value by the Corporation or by any Subsidiary; and (d) no monies
shall be paid into or set apart or made available for a sinking
or other like fund for the purchase, redemption or other
acquisition for value of any shares of Junior Stock by the
Corporation or any Subsidiary.
(4) Any dividend payment made on the DECS shall be
distributed pro rata to the holders entitled thereto and be
credited first against the earliest accrued but unpaid dividend
due with respect to the DECS.
B. Voting Rights. (1) The holders of shares of the DECS
shall have the right with the holders of the Common Stock to vote
in the election of Directors of the Corporation and upon each
other matter coming before any meeting of the shareholders on the
basis of 85.47 votes for each share held. The holders of the
DECS and the holders of Common Stock shall vote together as a
single voting group except as otherwise set forth herein or as
otherwise provided by law or by the Amended and Restated Articles
of Incorporation of the Corporation.
(2) The approval of more than two-thirds of the votes
entitled to be cast by the holders of the outstanding shares of
the DECS, voting as a separate voting group, shall be required
for the adoption of any amendment to the Articles of
Incorporation, or any bylaw, that materially adversely changes
the preferences, limitations and rights of the DECS (it being
expressly stated that an increase in the number of Directors of
the Corporation is not such an adverse change, provided that this
statement is made as a matter of clarification and shall not be
read as implying that in its absence such an increase would
constitute such an adverse change) or for the authorization of,
or the increase in the authorized number of shares of, a class of
Capital Stock other than Junior Stock and Parity Stock. The
approval of a majority of the votes entitled to be cast by the
holders of the outstanding shares of the DECS, voting as a
separate voting group, shall be required for authorization of, or
an increase in the authorized number of shares of, any class of
Parity Stock. Except for cases covered by the two preceding
sentences of this subparagraph B(2), whenever the holders of the
DECS are entitled under the Virginia Stock Corporation Act to
vote as a separate voting group on an amendment of the Articles
of Incorporation, a plan of merger, or a plan of share exchange,
the vote required for the approval of such amendment shall be a
majority of all votes cast on the amendment, plan of merger or
plan of share exchange by the holders of the DECS at a meeting at
which the holders of a majority of the outstanding shares of the
DECS are represented in person or by proxy.
(3) Whenever the holders of the DECS are entitled
under the Virginia Stock Corporation Act to vote together with
the holders of one or more other series of Preferred Stock as a
single voting group (including a vote of the class of Preferred
Stock as a separate voting group) on any amendment of the
Articles of Incorporation, plan of merger or plan of share
exchange, the vote required for the approval of such amendment,
plan of merger or plan of share exchange shall be a majority of
all votes cast on the amendment, plan of merger or plan of share
exchange by the holders of the shares included in such voting
group at a meeting at which the holders of a majority of the
outstanding shares included in such voting group are represented
in person or by proxy; provided that if at the time of such vote
there shall be outstanding any share of a series included in such
voting group which under the Articles of Incorporation or
otherwise under the Virginia Stock Corporation Act is not
authorized as part of such voting group to approve the amendment,
plan of merger or plan of share exchange by such majority vote,
the vote required for its approval of such amendment, plan of
merger or plan of share exchange shall be more than two-thirds of
all the votes entitled to be cast by such voting group.
(4) The holders of the outstanding shares of the DECS
shall also have the right, voting together with the holders of
any other outstanding shares of Voting Preferred Stock (as
hereinafter defined) as a separate voting group, to elect two
members of the Board of Directors of the Corporation at any time
six or more quarterly dividends on any shares of Voting Preferred
Stock shall be in arrears and unpaid, in whole or in part,
whether or not declared and whether or not any funds shall be or
have been legally available for payment thereof. For this
purpose, "Voting Preferred Stock" shall mean the DECS and each
other series of Preferred Stock which shall have substantially
similar voting rights (including voting as one voting group with
other shares of Voting Preferred Stock) with respect to the
election of directors upon substantially similar arrearages of
dividends. In such event, unless a regular meeting of the
shareholders of the Corporation is to be held within 60 days
thereof for the purpose of electing Directors, the Corporation
shall promptly thereafter cause the number of Directors of the
Corporation to be increased by two, and, within 30 days
thereafter, shall call a special meeting of the holders of the
outstanding shares of Voting Preferred Stock for the purpose of
electing such Directors to take place at the time specified in
the notice of the meeting, to be not more than 60 days after such
holders become so entitled to elect two Directors and not less
than ten nor more than 50 days after the date on which such
notice is mailed. If such special meeting shall not have been so
called by the Corporation, or such regular meeting shall not be
so held, a special meeting may be called for such purpose at the
expense of the Corporation by the holders of not less than 10% of
the outstanding shares of any series of Voting Preferred Stock;
and notice of any such special meeting shall be given by the
person or persons calling the same to the holders of the
outstanding shares of the Voting Preferred Stock by first-class
mail, postage prepaid, at their last addresses as shall appear on
the stock transfer records of the Corporation. At any such
special meeting the holders of the outstanding shares of Voting
Preferred Stock, voting as a separate voting group with each
share having one vote, shall elect two members of the Board of
Directors of the Corporation. If a regular meeting of the
shareholders of the Corporation for the purpose of electing
Directors is to be held within 60 days after the time the holders
of the outstanding shares of Voting Preferred Stock become so
entitled to elect two Directors, then the holders of the
outstanding shares of Voting Preferred Stock shall be given
notice thereof in the same manner as other shareholders of the
Corporation entitled to vote thereat; and at such regular
meeting, the holders of the outstanding shares of Voting
Preferred Stock, voting as a separate voting group with each
share having one vote, shall elect two members of the Board of
Directors. The right of the holders of the Voting Preferred
Stock, voting as a separate voting group, to elect two members of
the Board of Directors of the Corporation shall continue until
such time as no dividends on any outstanding shares of Voting
Preferred Stock are in arrears and unpaid, in whole or in part,
at which time (i) the voting power of the holders of the
outstanding shares of Voting Preferred Stock so to elect two
directors shall cease, but always subject to the same provisions
of this paragraph (4) for the vesting of such voting power upon
the occurrence of each and every like arrearage of dividends, and
(ii) the term of office of each member of the Board of Directors
who was elected pursuant to this subparagraph B(4) shall
automatically expire.
C. Redemptions and Conversions.
(1) Mandatory Conversion. On July 1, 1998 (the
"Mandatory Conversion Date"), each outstanding share of the DECS
shall convert automatically (the "Mandatory Conversion") into
shares of Common Stock at the Common Equivalent Rate (as
hereinafter defined) in effect on the Mandatory Conversion Date
and the right to receive an amount in cash equal to all accrued
and unpaid dividends on such DECS (other than dividends declared
for which the record date is before, and the payment date is
after, the Mandatory Conversion Date) to the Mandatory Conversion
Date, whether or not declared, out of funds legally available for
the payment of dividends, subject to the right of the Corporation
to redeem the DECS on or after the Initial Redemption Date (as
hereinafter defined) and before the Mandatory Conversion Date and
subject to the conversion of the DECS at the option of the holder
at any time before the Mandatory Conversion Date. The Common
Equivalent Rate is initially one hundred shares of Common Stock
for each DECS and is subject to adjustment as set forth below.
Dividends on the DECS shall cease to accrue and such shares shall
cease to be outstanding on the Mandatory Conversion Date. The
Corporation shall make such arrangements as it deems appropriate
for the issuance of certificates representing shares of Common
Stock and for the payment of cash in respect of such accrued and
unpaid dividends, if any, or cash in lieu of fractional shares,
if any, in exchange for and contingent upon surrender of
certificates representing the DECS, provided that the Corporation
shall give the holders of the DECS such notice of any such
arrangements as the Corporation deems appropriate and upon such
surrender such holders shall be entitled to receive any dividends
declared and paid on such shares of Common Stock after the
Mandatory Conversion Date. Amounts payable in cash in respect of
the shares of the DECS or in respect of such shares of Common
Stock shall not bear interest.
(2) Redemption by the Corporation.
(a) Right to Redeem. The DECS are not
redeemable by the Corporation before July 1, 1997 (the
"Initial Redemption Date"). At any time and from time
to time on or after the Initial Redemption Date and
before the Mandatory Conversion Date, the Corporation
shall have the right to redeem, in whole or in part,
the outstanding DECS. Upon any such redemption, the
Corporation shall deliver to the holders of the DECS,
in accordance with the provisions of these Articles of
Amendment, in exchange for each share so redeemed, a
number of shares of Common Stock equal to the greater
of (i) the Call Price (as hereinafter defined) in
effect on the redemption date, divided by the Current
Market Price (as hereinafter defined) of the Common
Stock determined as of the date which is one trading
day before the public announcement by the Corporation
of the redemption or (ii) 85.47 shares of Common Stock,
subject to adjustment to the same extent as the
Optional Conversion Rate (as defined and as set forth
below). The Call Price of each share of the DECS is
the sum of (i) $1,763.81 on and after the Initial
Redemption Date through September 30, 1997; $1,754.11
on and after October 1, 1997 through December 31, 1997;
$1,744.41 on and after January 1, 1998 through March
31, 1998; $1,734.70 on and after April 1, 1998 through
May 31, 1998; and $1,725.00 on and after June 1, 1998
until the Mandatory Conversion Date and (ii) all
accrued and unpaid dividends thereon to the redemption
date (other than dividends for which the record date is
before, and the payment date is after, the redemption
date), subject to the right of the Corporation pursuant
to paragraph A(1) to pay such accrued and unpaid
dividends in cash. The public announcement by the
Corporation of any call for redemption shall be made
before the mailing of the notice of such call to
holders of the DECS as described below. If fewer than
all of the outstanding shares of the DECS are to be
redeemed, shares to be redeemed shall be selected by
the Corporation from the outstanding shares of the DECS
not previously redeemed by lot or pro rata (as nearly
as may be practicable) or by any other method
determined to be equitable by the Board of Directors of
the Corporation in its sole discretion.
(b) Current Market Price. As used in this
paragraph C(2), the term "Current Market Price" per
share of the Common Stock on any date of determination
means the lesser of (i) the average of the Closing
Prices (as hereinafter defined) of the Common Stock for
the fifteen consecutive Trading Days (as hereinafter
defined) ending on and including such date of
determination, and (ii) the Closing Price of the Common
Stock for such date of determination; provided,
however, that, with respect to any redemption of the
DECS, if any event that results in an adjustment of the
Common Equivalent Rate occurs during the period
beginning on the first day of such fifteen-day period
and ending on the applicable redemption date, the
Current Market Price as determined pursuant to the
foregoing shall be appropriately adjusted to reflect
the occurrence of such event.
(c) Notice of Redemption. The Corporation
shall provide notice of any redemption of any shares of
the DECS to holders of record of the DECS to be called
for redemption not less than 15 nor more than 60 days
before the date fixed for such redemption. Such notice
shall be provided by mailing notice of such redemption,
first class postage prepaid, to each holder of record
of the shares of the DECS to be redeemed, at such
holder's address as it appears on the stock register of
the Corporation; provided, however, that neither
failure to give such notice nor any defect therein
shall affect the validity of the redemption of any DECS
to be redeemed.
Each such notice shall state, as appropriate,
the following and may contain such other information as
the Corporation deems advisable:
1) the redemption date;
2) that all outstanding DECS are
to be redeemed or, in the case of a call for
redemption of fewer than all outstanding
DECS, the number of shares of the DECS held
by such holder to be redeemed;
3) the Call Price, the number of
shares of Common Stock deliverable upon
redemption of each share of the DECS to be
redeemed and the Current Market Price used to
calculate such number of shares of Common
Stock;
4) the place or places where
certificates for such shares are to be
surrendered for redemption; and
5) that dividends on the DECS to
be redeemed shall cease to accrue on such
redemption date (except as otherwise provided
herein).
(d) Deposit of Shares and Funds. The
Corporation's obligation to deliver shares of Common
Stock and provide funds upon redemption in accordance
with this paragraph C(2) shall be deemed fulfilled if,
on or before a redemption date, the Corporation shall
irrevocably deposit with a bank or trust company, or an
affiliate of a bank or trust company, having its
principal office in the United States of America and
having a capital and surplus of at least $50,000,000,
or shall set aside or make other reasonable provision
for the issuance of such number of shares of Common
Stock as are required to be delivered by the
Corporation pursuant to this paragraph C(2) upon the
occurrence of the related redemption (and for the
payment of cash in lieu of the issuance of fractional
share amounts and accrued and unpaid dividends payable
in cash on the shares to be redeemed as and to the
extent provided by this paragraph C(2)). Any interest
accrued on such funds shall be paid to the Corporation
from time to time. Any shares of Common Stock or funds
so deposited and unclaimed at the end of two years from
such redemption date shall be repaid and released to
the Corporation, after which the holder or holders of
such shares of the DECS so called for redemption shall
look only to the Corporation for delivery of such
shares of Common Stock or funds.
(e) Surrender of Certificates; Status. Each
holder of the shares of the DECS to be redeemed shall
surrender the certificates evidencing such shares
(properly endorsed or assigned for transfer, if the
Board of Directors of the Corporation shall so require
and the notice shall so state) to the Corporation at
the place designated in the notice of such redemption
and shall thereupon be entitled to receive certificates
evidencing shares of Common Stock and to receive any
funds payable pursuant to this paragraph C(2) following
such surrender and following the date of such
redemption. In case fewer than all of the shares
represented by any such surrendered certificate are
called for redemption, a new certificate shall be
issued at the expense of the Corporation representing
the unredeemed shares. If such notice of redemption
shall have been given, and if on the date fixed for
redemption shares of Common Stock and funds necessary
for the redemption shall have been irrevocably either
set aside by the Corporation separate and apart from
its other funds or assets in trust for the account of
the holders of the shares to be redeemed or converted
(and so as to be and continue to be available therefor)
or deposited with a bank or a trust company or an
affiliate thereof as provided herein or the Corporation
shall have made other reasonable provision therefor,
then, notwithstanding that the certificates evidencing
any shares of the DECS so called for redemption or
subject to conversion shall not have been surrendered,
the shares represented thereby so called for redemption
shall be deemed no longer outstanding, dividends with
respect to the shares so called for redemption shall
cease to accrue on the date fixed for redemption
(except that holders of the shares of the DECS at the
close of business on a record date for any payment of
dividends shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such
shares following such record date and before such
Dividend Payment Date) and all rights with respect to
the shares so called for redemption shall forthwith
after such date cease and terminate, except for the
rights of the holders to receive the shares of Common
Stock and funds, if any, payable pursuant to this
paragraph C(2) without interest upon surrender of their
certificates therefor. Holders of shares of the DECS
that are redeemed shall not be entitled to receive
dividends declared and paid on such shares of Common
Stock, and such shares of Common Stock shall not be
entitled to vote, until such shares of Common Stock are
issued upon the surrender of the certificates
representing such DECS and upon such surrender such
holders shall be entitled to receive such dividends
declared and paid on such shares of Common Stock after
such redemption date.
(3) Conversion at Option of Holder. The DECS are
convertible, in whole or in part, at the option of the holders
thereof, at any time before the Mandatory Conversion Date, unless
previously redeemed, into shares of Common Stock at a rate of
85.47 shares of Common Stock for each share of the DECS (the
"Optional Conversion Rate"), subject to adjustment as set forth
below. The right to convert DECS called for redemption shall
terminate at the close of business on the redemption date.
Conversion of shares of the DECS may be effected by
delivering certificates evidencing such shares, together with
written notice of conversion and a proper assignment of such
certificates to the Corporation or in blank, to the office or
agency to be maintained by the Corporation for that purpose, and
otherwise in accordance with conversion procedures established by
the Corporation from time to time. Each conversion shall be
deemed to have been effected immediately before the close of
business on the date on which the foregoing requirements shall
have been satisfied. The conversion shall be at the Optional
Conversion Rate in effect at such time and on such date.
Holders of shares of the DECS at the close of business
on a record date for any payment of dividends shall be entitled
to receive the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the
conversion of such shares following such record date and before
such Dividend Payment Date. The Corporation shall make no other
payment or allowance for unpaid dividends, whether or not in
arrears, on converted shares of the DECS or for dividends or
distributions on the shares of Common Stock issued upon such
conversion.
(4) Common Equivalent Rate and Optional Conversion
Rate Adjustments. The Common Equivalent Rate and the Optional
Conversion Rate shall be subject to adjustment from time to time
as provided below in this paragraph.
(a) If the Corporation shall:
1) pay a dividend or make a
distribution with respect to the Common Stock
in shares of such stock,
2) subdivide or split its
outstanding shares of Common Stock into a
greater number of shares,
3) combine its outstanding shares
of Common Stock into a smaller number of
shares, or
4) issue by reclassification of
its shares of Common Stock any shares of
Common Stock of the Corporation,
then, in any such event, the Common Equivalent Rate and
the Optional Conversion Rate in effect immediately
before such event shall each be adjusted so that the
holders of any shares of the DECS shall thereafter be
entitled to receive, upon Mandatory Conversion or upon
conversion at the option of the holder, the number of
shares of Common Stock of the Corporation which such
holder would have owned or been entitled to receive
immediately following any event described above had
such shares of the DECS been converted immediately
before such event or any record date with respect
thereto. Such adjustments shall become effective at
the opening of business on the business day next
following the record date for determination of
shareholders entitled to receive such dividend or
distribution in the case of a dividend or distribution
and shall become effective immediately after the
effective date in the case of a subdivision, split,
combination or reclassification. Such adjustments
shall be made successively.
(b) If the Corporation shall, after the date
hereof, issue rights or warrants to all holders of its
Common Stock entitling them (for a period not exceeding
45 days from the date of such issuance) to subscribe
for or purchase shares of Common Stock at a price per
share less than the current market price of the Common
Stock, then in each case the Common Equivalent Rate and
the Optional Conversion Rate shall each be adjusted by
multiplying the Common Equivalent Rate and the Optional
Conversion Rate, in effect immediately before the date
of issuance of such rights or warrants, by a fraction,
of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of
such rights or warrants, immediately before such
issuance, plus the number of additional shares of
Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and of which the
denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such
rights or warrants, immediately before such issuance,
plus the number of additional shares of Common Stock
which the aggregate offering price of the total number
of shares of Common Stock so offered for subscription
or purchase pursuant to such rights or warrants would
purchase at such current market price (determined by
multiplying such total number of shares by the exercise
price of such rights or warrants and dividing the
product so obtained by such current market price).
Such adjustments shall become effective at the opening
of business on the business day next following the
record date for the determination of shareholders
entitled to receive such rights or warrants. To the
extent that shares of Common Stock are not delivered
after the expiration of such rights or warrants, the
Common Equivalent Rate and the Optional Conversion Rate
shall be readjusted to the Common Equivalent Rate and
the Optional Conversion Rate, respectively, which would
then be in effect had the adjustments made upon the
issuance of such rights or warrants been made upon the
basis of delivery of only the number of shares of
Common Stock actually delivered. Such adjustments
shall be made successively.
(c) If the Corporation shall pay a dividend
or make a distribution to all holders of Common Stock
of evidences of its indebtedness, securities of a
Subsidiary or other assets (excluding any dividends or
distributions referred to in subparagraph (4)(a) above
or any cash dividends other than Extraordinary Cash
Distributions, as defined in subparagraph E(e) below)
or shall issue to all holders of its Common Stock
rights or warrants to subscribe for or purchase any of
its securities (other than those referred to in
subparagraph (4)(b) above), then in each such case, the
Common Equivalent Rate and the Optional Conversion Rate
shall each be adjusted by multiplying the Common
Equivalent Rate and the Optional Conversion Rate in
effect on the record date mentioned below, by a
fraction of which the numerator shall be the current
market price per share of the Common Stock on the
record date for the determination of shareholders
entitled to receive such dividend or distribution, and
of which the denominator shall be such current market
price per share of Common Stock less the fair market
value as determined by the Board of Directors of the
Corporation, whose determination shall be conclusive,
and described in a resolution adopted with respect
thereto) as of such record date of the portion of the
assets or evidences of indebtedness so distributed or
of such subscription rights or warrants applicable to
one share of Common Stock. Such adjustments shall
become effective on the opening of business on the
business day next following the record date for the
determination of shareholders entitled to receive such
dividend, distribution or issuance. Such adjustments
shall be made successively.
(d) Any shares of Common Stock issuable in
payment of a dividend shall be deemed to have been
issued immediately before the close of business on the
record date for such dividend for purposes of
calculating the number of outstanding shares of Common
Stock under subparagraph (4)(b) above. For purposes of
any computation under subparagraphs (4)(b) and (4)(c)
above, the current market price per share of Common
Stock at any date shall be deemed to be the average of
the daily Closing Prices for the thirty consecutive
Trading Days preceding the date in question; provided,
however, if any event that results in an adjustment of
the Common Equivalent Rate occurs during such thirty-
day period, the current market price as determined
pursuant to the foregoing shall be appropriately
adjusted to reflect the occurrence of such event.
(e) The Corporation shall also be entitled
to make upward adjustments in the Common Equivalent
Rate, the Optional Conversion Rate and the Call Price,
as it in its discretion shall determine to be
advisable, so that any stock dividends, subdivisions of
shares, distribution of rights to purchase stock or
securities, or distribution of securities convertible
into or exchangeable for stock (or any transaction
which could be treated as any of the foregoing
transactions pursuant to Section 305 of the Internal
Revenue Code of 1986, as amended) hereafter made by the
Corporation to its shareholders shall not be taxable.
(f) In any case in which subparagraph (4)(c)
shall require that an adjustment as a result of any
event become effective at the opening of business on
the business day next following a record date and the
date fixed for conversion pursuant to paragraph C(3) or
redemption pursuant to paragraph C(2) occurs after such
record date, but before the occurrence of such event,
the Corporation may in its sole discretion, elect to
defer the following until after the occurrence of such
event: (A) issuing to the holder of any converted or
redeemed shares of the DECS the additional shares of
Common Stock issuable upon such conversion or
redemption over the shares of Common Stock issuable
before giving effect to such adjustment and (B) paying
to such holder any amount in cash in lieu of a
fractional share of Common Stock pursuant to
subparagraph C(1).
(g) All adjustments to the Common Equivalent
Rate and the Optional Conversion Rate shall be
calculated to the nearest 1/1000th of a share of Common
Stock (or if there is not a nearest 1/1000th of a share
to the next lower 1/1000th of a share). No adjustment
in the Common Equivalent Rate and the Optional
Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at
least one percent therein; provided, however, that any
adjustments which by reason of this subparagraph are
not required to be made shall be carried forward and
taken into account in any subsequent adjustments.
(5) Adjustment for Consolidation or Merger. In case
of any consolidation or merger to which the Corporation is a
party (other than a merger or consolidation in which the
Corporation is the continuing corporation and in which the Common
Stock outstanding immediately before the merger or consolidation
remains unchanged), or in case of any sale or transfer to another
corporation of the property of the Corporation as an entirety or
substantially as an entirety, or in case of any statutory
exchange of securities with another corporation (other than in
connection with a merger or acquisition), proper provision shall
be made so that each share of the DECS shall, after consummation
of such transaction, be subject to (i) conversion at the option
of the holder into the kind and amount of securities, cash or
other property receivable upon consummation of such transaction
by a holder of the number of shares of Common Stock into which
such shares of the DECS might have been converted immediately
before consummation of such transaction, (ii) conversion on the
Mandatory Conversion Date into the kind and amount of securities,
cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock
into which such shares of the DECS would have converted if the
conversion on the Mandatory Conversion Date had occurred
immediately before the date of consummation of such transaction,
and (iii) redemption on any redemption date in exchange for the
kind and amount of securities, cash or other property receivable
upon consummation of such transaction by a holder of the number
of shares of Common Stock that would have been issuable at the
Call Price in effect on such redemption date upon a redemption of
such shares immediately before consummation of such transaction,
assuming that the public announcement of such redemption had been
made on the last possible date permitted by the terms of the DECS
and applicable law, assuming in each case that such holder of
Common Stock failed to exercise rights of election, if any, as to
the kind or amount of securities, cash or other property
receivable upon consummation of such transaction (provided that
if the kind or amount of securities, cash or other property
receivable upon consummation of such transaction is not the same
for each non-electing share, then the kind and amount of
securities, cash or other property receivable upon consummation
of such transaction for each non-electing share shall be deemed
to be the kind and amount so receivable per share by a plurality
of the non-electing shares). The kind and amount of securities
into which the DECS shall be convertible after consummation of
such transaction shall be subject to adjustment as described in
subparagraph C(4) following the date of consummation of such
transaction. The Corporation may not become a party to any such
transaction unless the terms thereof are consistent with the
foregoing.
(6) Notice of Adjustments. Whenever the Common
Equivalent Rate and the Optional Conversion Rate are adjusted as
herein provided, the Corporation shall:
(a) forthwith compute the adjusted Common
Equivalent Rate and Optional Conversion Rate in
accordance herewith and prepare a certificate signed by
an officer of the Corporation setting forth the
adjusted Common Equivalent Rate and the Optional
Conversion Rate, the method of calculation thereof in
reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based,
which certificate shall be conclusive, final and
binding evidence of the correctness of the adjustment,
and file such certificate forthwith with the transfer
agent for the DECS and the Common Stock; and
(b) mail a notice to the holders of the
outstanding shares of the DECS stating that the Common
Equivalent Rate and the Optional Conversion Rate have
been adjusted, the facts requiring such adjustment and
upon which such adjustment is based and setting forth
the adjusted Common Equivalent Rate and Optional
Conversion Rate, such notice to be mailed at or before
the time the Corporation mails an interim statement to
its shareholders covering the fiscal quarter during
which the facts requiring such adjustment occurred, but
in any event within 45 days of the end of such fiscal
quarter.
(7) Notices. In case, at any time while any of the
DECS are outstanding,
(a) the Corporation shall declare a dividend
(or any other distribution) on its Common Stock,
excluding any cash dividends, but including without
limitation any securities of a Subsidiary; or
(b) the Corporation shall authorize the
issuance to all holders of its Common Stock of rights
or warrants to subscribe for or purchase shares of its
Common Stock or of any other subscription rights or
warrants; or
(c) the Corporation shall authorize any
reclassification of the Common Stock of the Corporation
(other than a subdivision or combination thereof) or
any consolidation or merger to which the Corporation is
a party and for which approval of any shareholders of
the Corporation is required (except for a merger of the
Corporation into a Subsidiary solely for the purpose of
changing the corporate domicile of the Corporation to
another state of the United States of America and in
connection with which there is no substantive change in
the rights or privileges of any securities of the
Corporation other than changes resulting from
differences in the corporate statutes of the then
existing and the new state of domicile), or the sale or
transfer of all or substantially all of the assets of
the Corporation; or
(d) there shall be commenced the voluntary
or involuntary dissolution, liquidation or winding up
of the Corporation;
then the Corporation shall cause to be filed at each office or
agency maintained for the purpose of conversion of the DECS, and
shall cause to be mailed to the holders of the shares of the DECS
at their last addresses as they shall appear on the stock
register, at least ten days before the date hereinafter specified
(or the earlier of the dates hereinafter specified, if more than
one date is specified), a notice stating (A) the date on which a
record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution, rights or warrants
are to be determined, or (B) the date on which any such
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their
Common Stock for securities or other property (including cash),
if any, deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.
The failure to give or receive the notice required by this
subparagraph (7) or any defect therein shall not affect the
legality or validity of any such dividend, distribution, right or
warrant or other action.
(8) Effective Date of Conversion and Redemptions. The
person or persons in whose name or names any certificate or
certificates for shares of Common Stock shall be issuable upon
any conversion or redemption shall be deemed to have become on
the date of any such conversion or redemption the holder or
holders of record of the shares represented thereby; provided,
however, that any such surrender on any date when the stock
transfer books of the Corporation shall be closed shall
constitute the person or persons in whose name or names the
certificate or certificates for such shares are to be issued as
the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such
stock transfer books are open.
(9) No Fractional Shares. No fractional shares or
script representing fractional shares of Common Stock shall be
issued upon the redemption or conversion of any DECS. In lieu of
any fractional shares otherwise issuable in respect of all the
DECS of any holder which are redeemed or converted on any
redemption date or upon Mandatory Conversion or any optional
conversion, such holder shall be entitled to receive an amount in
cash (computed to the nearest cent) equal to the same fraction of
the (i) Current Market Price in the case of redemption, or (ii)
Closing Price of Common Stock determined (A) as of the fifth
Trading Day immediately preceding the Mandatory Conversion Date,
in the case of Mandatory Conversion, or (B) as of the second
Trading Day immediately preceding the effective date of
conversion, in the case of an optional conversion by a holder.
If more than one share shall be surrendered for conversion or
redemption at one time by or for the same holder, the number of
full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares
of the DECS so surrendered or redeemed.
(10) Payment of Taxes. The Corporation shall pay any
and all documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of Common
Stock on the redemption or conversion of the DECS pursuant to
this paragraph C; provided, however, that the Corporation shall
not be required to pay any tax which may be payable in respect of
any registration of transfer involved in the issue or delivery of
shares of Common Stock in a name other than that of the
registered holder of the shares of the DECS redeemed or converted
or to be redeemed or converted, and no such issue or delivery
shall be made unless and until the person requesting such issue
has paid to the Corporation the amount of any such tax or has
established, to the satisfaction of the Corporation, that such
tax has been paid.
(11) Reservation of Common Stock. The Corporation
shall at all times reserve and keep available, free from
preemptive rights, out of the aggregate of its authorized but
unissued Common Stock, for the purpose of effecting any Mandatory
Conversion of the DECS or any conversion of the DECS at the
option of the holder, the full number of shares of Common Stock
then deliverable upon any such conversion of all outstanding
DECS.
D. Liquidation Rights. (1) In the event of the
liquidation, dissolution or winding up of the business of the
Corporation, whether voluntary or involuntary, the holders of the
shares of the DECS then outstanding, after payment or provision
for payment of the debts and other liabilities of the Corporation
and the payment or provision for payment of any distribution on
any shares of the Corporation having a preference and a priority
over the DECS on liquidation, and before any distribution to the
holders of the Common Stock or any other Junior Stock, shall be
entitled to be paid out of the assets of the Corporation
available for distribution to its shareholders, an amount per
share of the DECS in cash equal to the sum of (i) $1,725 per
share plus (ii) all accrued and unpaid dividends thereon to the
date of payment, before any payment shall be made or any assets
distributed to the holders of Junior Stock. If the amount
available for distribution to the holders of the outstanding
shares of the DECS upon any dissolution, liquidation or winding
up of the Corporation shall be insufficient to pay in full the
liquidation payments payable to the holders of the outstanding
shares of the DECS and any shares of Parity Stock, then the
holders of all such shares of the DECS and the Parity Stock shall
share ratably in such distribution of assets in proportion to the
full amounts to which they are respectively entitled. Except as
provided in this paragraph D, holders of the shares of the DECS
shall not be entitled to any distribution in the event of
liquidation, dissolution or winding up of the affairs of the
Corporation.
(a) For the purposes of this paragraph D, none of the
following shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation:
1) the voluntary sale, conveyance, lease,
exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or
substantially all of the property or assets of the
Corporation;
2) the consolidation or merger of the
Corporation with or into one or more other
corporations, or other associations;
3) the consolidation or merger of one or
more corporations or other associations with or into
the Corporation; or
4) the participation by the Corporation in
a share exchange.
E. Definitions. As used in these Articles of Amendment
the following terms have the following meanings:
(a) "Common Stock" shall mean any stock of any class
of the Corporation which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation and which is not subject to redemption by the
Corporation. However, shares of Common Stock issuable upon
conversion of the DECS shall include only shares of the class
designated as Common Stock as of the original date of issuance of
the DECS, or shares of the Corporation of any class or classes
resulting from any reclassification or reclassifications thereof
and which have no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and
which are not subject to redemption by the Corporation; provided
that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares
of such class resulting from such reclassification bears to the
total number of all shares of all classes resulting from such
reclassification.
(b) "business day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the
States of New York or North Carolina or the Commonwealth of
Virginia are authorized or obligated by law or executive order to
close or are closed because of a banking moratorium or otherwise;
(c) "Capital Stock" means any capital stock of any
class or series (however designated) of the Corporation.
(d) "Closing Price" on any day shall mean the closing
sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and
asked prices regular way, in each case on the New York Stock
Exchange (or any successor thereto);
(e) "Extraordinary Cash Distributions" means, with
respect to any cash dividend or distribution paid on any date,
the amount, if any, by which all cash dividends and cash
distributions on the Common Stock paid during the consecutive 12-
month period ending on and including such date (other than cash
dividends and cash distributions for which an adjustment to the
Common Equivalent Rate and the Optional Conversion Rate was
previously made) exceeds, on a per share of Common Stock basis,
10% of the average daily Closing Price of the Common Stock over
such 12-month period.
(f) "Junior Stock" means any Capital Stock ranking as
to dividends or as to rights in liquidation, dissolution or
winding up of the affairs of the Corporation junior to the DECS.
(g) "Parity Stock" means any Capital Stock ranking as
to dividends or as to rights in liquidation, dissolution or
winding up the affairs of the Corporation equally with the DECS.
(h) "Subsidiary" means any corporation a majority of
the outstanding Voting Stock of which is owned, directly or
indirectly, by the Corporation or by one or more Subsidiaries or
by the Corporation and one or more Subsidiaries. For this
purpose, "Voting Stock" means stock of any class or classes
(however designated) having ordinary voting power for the
election of a majority of the members of the board of directors
(or other governing body) of such corporation, other than stock
having such powers only by reason of the happening of a
contingency.
(i) "Trading Day" shall mean a day on which the New
York Stock Exchange (or any successor thereto) is open for the
transaction of business.
(j) "Voting Preferred Stock" is defined in paragraph
B(4) hereof.
III. This amendment was adopted by the Board of Directors of
the Corporation without shareholder action and shareholder action
was not required.
June 23, 1994 JAMES RIVER CORPORATION OF VIRGINIA
By:/s/ Robert C. Williams
Robert C. Williams
Chairman of the Board, President
and Chief Executive Officer
Exhibit 4.1
JAMES RIVER CORPORATION OF VIRGINIA
and
WACHOVIA BANK OF NORTH CAROLINA, N.A.
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of June 22, 1994
<PAGE>
TABLE OF CONTENTS
Page
Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . 1
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts . . . . . . 2
Section 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof . . . . . . . . . . . . . . 3
Section 2.3. Optional Redemption of Stock for Common
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.4. Mandatory Conversion of Stock. . . . . . . . . . 6
Section 2.5. Conversion at Option of Holder . . . . . . . . . 7
Section 2.6. Fractional Shares of Common Stock. . . . . . . . 8
Section 2.7. Transfer of Receipts . . . . . . . . . . . . . . 9
Section 2.8. Combinations and Split-ups of Receipts . . . . . 9
Section 2.9. Surrender of Receipts and Withdrawal of
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.10. Limitations on Execution and Delivery,
Transfer, Split-Up, Combination and Surrender of
Receipts . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.11. Lost Receipts, etc . . . . . . . . . . . . . . . 11
Section 2.12. Cancellation and Destruction of
Surrendered Receipts . . . . . . . . . . . . . . . . . . . 11
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other
Information. . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.2. Payment of Taxes or Other Governmental
Charges. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.3. Representations and Warranties as to
Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions . . . . . . . . . . . . . . . 12
Section 4.2. Distributions Other Than Cash. . . . . . . . . . 13
Section 4.3. Subscription Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.4. Notice of Dividends, Fixing of Record
Date for Holders of Receipts . . . . . . . . . . . . . . . 14
Section 4.5. Voting Rights. . . . . . . . . . . . . . . . . . 15
Section 4.6. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations, etc. . . . . . . 15
Section 4.7. Reports. . . . . . . . . . . . . . . . . . . . . 16
Section 4.8. Lists of Receipt Holders . . . . . . . . . . . . 16
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies,
Transfer Books by the Depositary Registrar . . . . . . . . 16
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company . . . . 17
Section 5.3. Obligations of the Depositary, the
Depositary's Agents and the Company. . . . . . . . . . . . 17
Section 5.4. Resignation and Removal of the
Depositary; Appointment of Successor Depositary. . . . . . 18
Section 5.5. Corporate Notices and Reports. . . . . . . . . . 19
Section 5.6. Deposit of Stock by the Company. . . . . . . . . 19
Section 5.7. Indemnification by the Company . . . . . . . . . 19
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment. . . . . . . . . . . . . . . . . . . . 20
Section 6.2. Termination. . . . . . . . . . . . . . . . . . . 20
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts . . . . . . . . . . . . . . . . . . 21
Section 7.2. Exclusive Benefits of Parties. . . . . . . . . . 21
Section 7.3. Invalidity of Provisions . . . . . . . . . . . . 22
Section 7.4. Notices. . . . . . . . . . . . . . . . . . . . . 22
Section 7.5. Depositary's Agents. . . . . . . . . . . . . . . 22
Section 7.6. Holders of Receipts are Parties. . . . . . . . . 23
Section 7.7. Governing Law. . . . . . . . . . . . . . . . . . 23
Section 7.8. Headings . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT A - Depositary Receipt
<PAGE>
DEPOSIT AGREEMENT
This DEPOSIT AGREEMENT is dated as of June 22, 1994 and
is among JAMES RIVER CORPORATION OF VIRGINIA, a Virginia
corporation (the "Company"), WACHOVIA BANK OF NORTH CAROLINA,
N.A., a national banking association, as depositary ("the
Depositary"), and all holders from time to time of Depositary
Receipts issued hereunder.
WITNESSETH
Whereas, the Company desires to provide for the deposit
of shares of Series P 9% Cumulative Convertible Preferred Stock,
par value $10.00 per share, of the Company with the Depositary for
the purposes set forth in this Deposit Agreement and for the
issuance of Depositary Receipts evidencing Depositary Shares in
respect of the Stock so deposited, all on the terms and conditions
set forth in this Agreement; and
Whereas, the Depositary Receipts are to be substantially
in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided
in this Deposit Agreement;
Now therefore, in consideration of the mutual premises,
it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The following definitions
shall for all purposes, unless otherwise clearly indicated, apply
to the respective terms used in this Agreement and the Depositary
Receipts:
"Authorizing Resolution" means the Articles of Amendment
adopted by the Company's Board of Directors establishing and
setting forth the rights, preferences and privileges of the Stock.
"Articles of Incorporation" means the Amended and
Restated Articles of Incorporation, as amended from time to time,
of the Company.
"Company" means James River Corporation of Virginia, a
Virginia corporation having its principal office at 120 Tredegar
Street, Richmond, Virginia 23219, and its successors.
"Common Stock" means the Common Stock, $.10 par value,
of the Company.
"Corporate Trust Office" means the principal office of
the Depositary in Winston-Salem, North Carolina, at which at any
particular time its corporate trust business shall be
administered.
"Deposit Agreement" means this Agreement, as the same
may be amended or supplemented from time to time.
"Depositary" means Wachovia Bank of North Carolina,
N.A., a national banking association and any successor as
depositary hereunder.
"Depositary Shares" means the beneficial interests in
the Stock, evidenced by the Depositary Receipts issued hereunder
and constituted by the interests in Stock deposited with the
Depositary hereunder represented by such Receipts. Each
Depositary Share shall, as provided herein, represent an interest
in one-hundredth (1/100) (as such fraction may from time to time
be adjusted in the event of certain amendments to the Company's
Articles of Incorporation) of one share of Stock.
"Depositary's Agent" means an agent appointed by the
Depositary as provided, and for the purposes specified, in Section
7.5.
"Receipt" means one or more of the Depositary Receipts
issued hereunder.
"Record Holder" as applied to a Receipt means the person
in whose name a Receipt is registered on the books of the
Depositary maintained for such purpose.
"Registrar" means any bank or trust company which shall
be appointed to register Receipts as herein provided.
"Securities Act of 1933" means the Act of May 27, 1933
(15 U.S. Code, Secs. 77a-77aa), as from time to time amended.
"Stock" means shares of the Company's Series P 9%
Cumulative Convertible Preferred Stock, par value $10.00 per
share, heretofore validly issued, fully paid and nonassessable.
"Stockholders" means holders of the Stock.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts.
Receipts shall be engraved or printed or lithographed on steel-
engraved borders and shall be substantially in the form set forth
in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized representative of the Depositary,
provided that such signature may be a facsimile if a Registrar for
the Receipts (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly
authorized representative of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid
or obligatory for any purpose, unless it shall have been executed
manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a
duly authorized representative of the Depositary and, if executed
by facsimile signature of the Depositary, shall have been
countersigned manually by a duly authorized representative of such
Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of
whole Depositary Shares, unless otherwise directed by the Company.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary at the direction of the Company or
required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities
exchange upon which the Stock, the Depositary Shares or the
Receipts, may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of
issuance of the Stock or otherwise.
Title to Depositary Shares evidenced by a Receipt which
is properly endorsed or accompanied by a properly executed
instrument of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided,
however, that until a Receipt shall be transferred on the books of
the Depositary as provided in Section 2.7, the Depositary may,
notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the
purpose of determining the person entitled to distribution of
dividends or other distributions, to shares of Common Stock issued
upon conversion or redemption of the Stock or to any notice
provided for in this Deposit Agreement and for all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement any holder of Stock may
deposit such Stock under this Deposit Agreement by delivery to the
Depositary at its Corporate Trust Office (or at such other place
as may be agreeable to the Depositary) of a certificate or
certificates for the Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed
instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of
this Deposit Agreement, and together with a written order
directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a
Receipt for the number of Depositary Shares representing such
deposited Stock.
The Depositary shall require, at the direction of the
Company, that Stock presented for deposit at any time, whether or
not the register of Stockholders of the Company is closed, shall
also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for
the prompt transfer to the Depositary or its nominee of any
dividend or right to subscribe for additional Stock or to receive
other property which any person in whose name the Stock is or has
been recorded may thereafter receive upon or in respect of such
deposited Stock, or in lieu thereof such agreement of indemnity or
other agreement as shall be satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit
Agreement, Stock may also be deposited hereunder in connection
with the delivery of Receipts to represent distributions under
Section 4.2 and upon exercise of the rights to subscribe referred
to in Section 4.3.
Upon each delivery to the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents above specified, the Depositary shall, as soon
as transfer and recordation can be accomplished, present such
certificate or certificates to the Registrar and transfer agent of
the Stock for transfer and recordation in the name of the
Depositary or its nominee of the Stock being deposited. Deposited
Stock shall be held by the Depositary, at the Depositary's
Corporate Trust Office, or at such other place or places as the
Depositary shall determine.
Upon receipt by the Depositary of a certificate or
certificates for Stock deposited in accordance with the provisions
of this Section, together with the other documents required as
above specified, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver to
or upon the order of the person or persons named in the written
order delivered to the Depositary referred to in the first
paragraph of this Section, a Receipt for the number of Depositary
Shares representing the Stock so deposited and registered in such
name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt at its Corporate
Trust Office and at such other offices, if any, as it may
designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery. However, in each
case, such delivery will be made only upon payment to the
Depositary of the fee of the Depositary for the execution and
delivery of such Receipt by the Company (unless payable by the
holder), as provided in Section 5.8, and of all taxes and
governmental charges and fees payable in connection with such
deposit and the transfer of the deposited Stock.
Section 2.3. Optional Redemption of Stock for Common
Stock. Whenever the Company shall elect to redeem shares of Stock
for shares of Common Stock pursuant to the terms of the Stock, it
shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 15 nor more than 60 days' notice
of the date of such proposed redemption of Stock and of the number
of shares held by the Depositary to be so redeemed. On the date
of such redemption, provided that the Company shall then have
irrevocably deposited or set aside or made other reasonable
provision for the issuance of such number of shares of Common
Stock as are required to be delivered by the Company in connection
with such redemption and paid in full to the Depositary the cash
to be delivered in lieu of the issuance of fractional shares of
Common Stock and for accrued and unpaid dividends payable in cash
on the shares of Stock to be redeemed, the Depositary shall redeem
the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of such redemption and the proposed
simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed, first class postage
prepaid, not less than 15 and not more than 60 days before the
date fixed for redemption of such Stock and Depositary Shares (the
"redemption date"), to the holders of record on the record date
for such redemption (determined pursuant to Section 4.4) of the
Receipts evidencing the Depositary Shares to be so redeemed, at
the addresses of such holders as the same appear on the records of
the Depositary; but neither failure to mail any such notice to one
or more such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption as to any holders.
Each such notice shall state the record date for the purposes of
such redemption; the redemption date; the number of Depositary
Shares to be redeemed and, if less than all the Depositary Shares
held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; the
redemption price; the number of shares of Common Stock deliverable
upon redemption of each Depositary Share to be redeemed and the
Current Market Price (as defined in the Authorizing Resolution)
used to calculate such number of shares of Common Stock; the place
or places where Receipts evidencing Depositary Shares are to be
surrendered for redemption; and that dividends in respect of the
Stock represented by the Depositary Shares to be redeemed will
cease to accrue and the right to convert the Depositary Shares
will terminate on such redemption date. In case less than all the
outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be so redeemed shall be selected by lot or pro rata (as
nearly as may be) or in any other equitable manner determined by
the Depositary to be consistent with the method determined by the
Board of Directors of the Company with respect to the Stock.
Notice having been mailed by the Depositary as
aforesaid, from and after the redemption date (unless the Company
shall have failed to redeem the shares of Stock to be redeemed by
it as set forth in the Company's notice provided for in the
preceding paragraph), all dividends in respect of the shares of
Stock so called for redemption shall cease to accrue, the
Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of
Receipts evidencing such Depositary Shares (except the right to
receive the Common Stock and amounts payable upon such redemption)
shall, to the extent of such Depositary Shares, cease and
terminate and, upon surrender in accordance with said notice of
the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the
Depositary for one one-hundredth (1/100) (as such fraction may
from time to time be adjusted, in certain events, so as to equal
at all times the fraction of an interest represented by one
Depositary Share in one share of Stock) of the consideration to be
received per share in respect of the shares of Stock plus all
money and other property, if any, represented by such Depositary
Shares, including all amounts paid by the Company in respect of
dividends which on the redemption date have accrued on the shares
of Stock to be so redeemed and have not theretofore been paid
(other than dividends for which the record date is before, and the
payment date is after, the redemption date). The foregoing shall
further be subject to the terms and conditions of the Authorizing
Resolution.
If less than all of the Depositary Shares evidenced by a
Receipt are called for redemption, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary,
together with the redemption consideration, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt
and not called for redemption.
Section 2.4. Mandatory Conversion of Stock. On July
1, 1998 ("Mandatory Conversion Date"), each outstanding Depositary
Share shall convert automatically into shares of Common Stock
("Mandatory Conversion") at the rate of one one-hundredth (as such
fraction may from time to time be adjusted, in certain events, so
as to equal at all times the fraction of an interest represented
by one Depositary Share in one share of Stock) of the rate then in
effect for the Stock and the right to receive an amount in cash
equal to all accrued and unpaid dividends on the interest in Stock
represented by such Depositary Share (other than dividends
declared for which the record date is before, and the payment date
is after, the Mandatory Conversion Date) to the Mandatory
Conversion Date, whether or not declared, out of funds legally
available for the payment of dividends, subject to the right of
the Depositary to redeem such Depositary Share pursuant to Section
2.3, and subject to the conversion of such Depositary Share
pursuant to Section 2.5 at the option of the holder at any time
before the Mandatory Conversion Date. Dividends on the Depositary
Shares shall cease to accrue and the Depositary Shares shall cease
to be outstanding on the Mandatory Conversion Date. All rights of
the holders of Receipts (except the right to receive the Common
Stock and amounts payable upon such conversion) shall cease and
terminate as of the Mandatory Conversion Date.
On or before the Mandatory Conversion Date, the Company shall
deposit, set aside or make such other reasonable provision for the
issuance of such number of shares of Common Stock as are required
to be delivered by the Company in connection with such mandatory
conversion and shall have paid in full to the Depositary the cash
to be delivered in lieu of the issuance of fractional shares of
Common Stock and for accrued and unpaid dividends payable in cash
on the shares of Stock so converted. The Depositary shall mail a
notice of the mandatory conversion, first class, postage pre-paid,
on the Mandatory Conversion Date, to the holder of record on the
Mandatory Conversion Date of the Receipts evidencing the
Depositary Shares to be so converted, at the addresses of such
holders as the same appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such
holders or any defect in any such notice shall affect the
sufficiency of the proceedings for conversion as to any holders.
Each such notice shall state the place or places where Receipts
evidencing Depositary Shares are to be surrendered for conversion
and that dividends in respect of the Stock represented by the
Depositary Shares to be converted will cease to accrue on the
Mandatory Conversion Date.
Upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), the
holder of such Receipts shall be entitled to receive one one-
hundredth (as such fraction may from time to time be adjusted, in
certain events, so as to equal at all times the fraction of an
interest represented by one Depositary Share in one share of
Stock) of the consideration to be received per share in respect of
the shares of Stock plus any dividends declared and paid on the
Common Stock so distributable after the Mandatory Conversion Date.
Section 2.5. Conversion at Option of Holder. The
Depositary Shares are convertible, in whole or in part, at the
option of the holders thereof, at any time before the Mandatory
Conversion Date, unless previously redeemed, into shares of Common
Stock at a rate for each Depositary Share of one one-hundredth (as
such fraction may from time to time be adjusted, in certain
events, so as to equal at all times the fraction of an interest
represented by one Depositary Share in one share of Stock) of the
rate then in effect for the Stock. The right to convert
Depositary Shares called for redemption shall terminate at the
close of business on the redemption date.
A holder desiring to convert Depositary Shares may effect
such conversion by delivering Receipts evidencing such Depositary
Shares, together with written notice of conversion and a proper
assignment of such Depositary Receipts to the Company or in blank,
to the Depositary at its principal corporate trust office or at
such other place or places as may be designated from time to time
by the Depositary. Holders of Depositary Shares at the close of
business on a record date for the distribution of any cash
dividend received by the Depositary shall be entitled to receive
the dividend payable on such Depositary Shares on the
corresponding "Dividend Payment Date" (as defined in the
Authorizing Resolution) notwithstanding the optional conversion of
such Depositary Shares following such record date and before such
Dividend Payment Date. The Company (and thereby the Depositary)
shall make no other payment or allowance for unpaid dividends,
whether or not in arrears, on converted Depositary Shares or for
dividends or distributions on the shares of Common Stock issued
upon conversion.
Upon receipt of properly surrendered Depositary Shares for
conversion, the Depositary shall in turn surrender to the Company
a corresponding number of shares of the Stock for conversion;
provided that no fractional shares of the Stock may be converted.
Upon receipt of such Stock properly surrendered, the Company shall
promptly deliver to the Depositary the Common Stock issuable upon
such conversion and the Depositary shall in turn deliver such
Common Stock to the holders of the surrendered Receipts entitled
thereto.
If less than all of the Depositary Shares evidenced by a
Receipt are surrendered for conversion, the Depositary will
deliver to the holder of such Receipt upon its surrender to the
Depositary, together with the Common Stock issuable upon
conversion, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not surrendered for
conversion.
Section 2.6. Fractional Shares of Common Stock. No
fractional shares of Common Stock will be issued upon redemption
or conversion of the Depositary Shares. In lieu of any fractional
share otherwise issuable in respect of all Depositary Shares of
any holder which are redeemed or converted on any redemption date
or upon Mandatory Conversion or any optional conversion, such
holder shall be entitled to receive an amount in cash equal to the
same fraction of the (i) Current Market Price (as defined in the
Authorizing Resolution) in the case of redemption, or (ii) Closing
Price (as defined in the Authorizing Resolution) of the Common
Stock determined (A) as of the fifth trading day immediately
preceding the Mandatory Conversion Date, in the case of Mandatory
Conversion, or (B) as of the second trading day immediately
preceding the effective date of conversion, in the case of an
optional conversion by a holder.
Section 2.7. Transfer of Receipts. Subject to the
terms and conditions of this Deposit Agreement, the Depositary
shall make transfers on its books from time to time of Receipts
upon any surrender thereof at the Depositary's Corporate Trust
Office by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument
of transfer, and duly stamped as may be required by law.
Thereupon the Depositary shall execute a new Receipt or Receipts
and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares
as those evidenced by the Receipt or Receipts surrendered.
Section 2.8. Combinations and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Depositary's
Corporate Trust Office or at such other offices as it may
designate for the purpose of effecting a split-up or combination
of such Receipt or Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Depositary shall execute
and deliver a new Receipt or Receipts in the authorized
denominations requested, evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts
surrendered.
Section 2.9. Surrender of Receipts and Withdrawal of
Stock. Any holder of a Receipt or Receipts representing any
number of whole shares of Stock may withdraw the Stock and all
money and other property, if any, represented thereby by
surrendering such Receipt or Receipts, at the Depositary's
Corporate Trust Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder,
or to the person or persons designated by such holder as
hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal. If the Receipt delivered
by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the
number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and
such money and other property, if any, to be so withdrawn, deliver
to such holder, or upon his order, a new Receipt evidencing such
excess number of Depositary Shares. In no event will fractional
shares of Stock (or cash in lieu thereof) be distributed by the
Depositary. Delivery of the Stock and money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of
transfer.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the Record Holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
Delivery of the Stock and the money and other property,
if any, represented by Receipts surrendered for withdrawal shall
be made by the Depositary at its Corporate Trust Office, except
that, at the request, risk and expense of the holder surrendering
such Receipt or Receipts and for the account of the holder
thereof, such delivery may be made at such other place as may be
designated by such holder.
Section 2.10. Limitations on Execution and Delivery,
Transfer, Split-Up, Combination and Surrender of Receipts. As a
condition precedent to the execution and delivery, transfer,
split-up, combination or surrender of any Receipt, the Depositary,
or any of the Depositary's Agents, or the Company, may require
payment to it of a sum sufficient for the payment (or, if the
Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with
respect thereto (including any such tax or charge with respect to
Stock being deposited or withdrawn), may require the production of
proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations,
if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, or the delivery of
Receipts against Stock may be suspended or the transfer of
Receipts may be refused, or the transfer, split-up, combination or
surrender of outstanding Receipts may be suspended (a) during any
period when the register of Stockholders of the Company is closed,
or (b) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of this Deposit Agreement or, with the approval of the
Company, for any other reason. Without limitation of the
foregoing, the Depositary shall not accept for deposit under this
Deposit Agreement any shares of Stock as to which it has actual
knowledge that such shares are required to be registered under the
Securities Act of 1933, unless a registration statement under such
Act is in effect as to such shares of Stock; provided however, the
Depositary shall have no affirmative duty to determine whether
such shares of Stock are required to be registered under the
Securities Act of 1933 or whether the effectiveness of any
registration statement has been suspended.
Section 2.11. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
in its discretion may execute and deliver a Receipt of like form
and tenor in exchange and substitution for such mutilated Receipt,
or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (a) the filing by the holder thereof with the
Depositary evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity
thereof and of his ownership thereof and (b) the furnishing of
the Depositary with an indemnity bond or other reasonable
indemnification satisfactory to it.
Section 2.12. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary shall, unless otherwise directed by the Company, hold
on behalf of the Company such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any
holder of a Receipt may be required from time to time to file such
proof of residence, or other matters or other information, to
execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company may withhold
the delivery or delay the transfer, redemption or conversion of
any Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt or the distribution of
any dividend or other distribution or the sale of any rights or of
the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations
and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to any
Receipt evidencing Depositary Shares or with respect to the
Depositary Shares evidenced by such Receipt or with respect to the
Stock (or any fractional interest therein) represented by such
Depositary Shares, such tax (including transfer taxes, if any) or
governmental charge shall be payable by the holder of such
Receipt, subject to certain exceptions set forth in Section 5.8.
Transfer of any Receipt or any withdrawal of Stock and all money
or other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused until such payment is
made, and any dividends, interest payments or other distributions
may be withheld, or any part or all of the Stock or other property
represented by the Depositary Shares evidenced by such Receipt and
not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such
holder prior to such sale), and such dividends, interest payments
or other distributions or the proceeds of any such sale may be
applied to any payment of such tax or other governmental charge,
the holder of such Receipt remaining liable for any deficiency.
Section 3.3. Representations and Warranties as to
Stock. In the case of the initial deposit of the Stock, the
Company and, in the case of subsequent deposits thereof, each
person so depositing Stock under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Stock and each
certificate therefore are valid and that the person making such
deposit is duly authorized so to do. The Company hereby further
represents and warrants that the Stock, when issued, will be
validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the
Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on Stock, the Depositary shall, subject to Section
3.2, distribute to Record Holders of Receipts on the record date
fixed pursuant to Section 4.4 such amounts of such sum as are, as
nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary
shall be required to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to
Record Holders of Receipts then outstanding.
Section 4.2. Distributions Other Than Cash. Whenever
the Depositary shall receive any distribution other than cash upon
Stock, the Depositary shall, subject to Section 3.2, distribute to
Record Holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of other securities or property received
by it as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts
held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If
in the opinion of the Company, after consultation with the
Depositary, such distribution cannot be made proportionately among
such Record Holders, or if for any reason (including any
requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with
the Company, such distribution not to be feasible, the Depositary
may, with the approval of the Company, adopt such method as the
Depositary deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of the other securities or property thus received,
or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall,
subject to Section 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to Record
Holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
Section 4.3. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is recorded on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the Record Holders of Receipts in
such manner as the Company may determine, either by the issue to
such Record Holders of warrants representing such rights,
preferences or privileges or by such other method as may be
approved by the Company in its discretion with the approval of the
Depositary; provided, however, that (a) if at the time of issue or
offer of any such rights, preferences or privileges the Company
determines that it is not lawful or (after consultation with the
Depositary) not feasible to make such rights, preferences or
privileges available to holders of Receipts by the issue of
warrants or otherwise, or (b) if and to the extent so instructed
by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Company, in its discretion
(with the approval of the Depositary, in any case where the
Company has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at
public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale
shall be distributed by the Depositary to the Record Holders of
Receipts entitled thereto as provided by Section 4.1 in the case
of a distribution received in cash.
If registration under the Securities Act of 1933 of the
securities to which any rights, preferences or privileges relate
is required in order for holders of Receipts to be offered or sold
the securities to which such rights, preferences or privileges
relate, the Company agrees with the Depositary that it will
promptly file a registration statement pursuant to such Act with
respect to such rights, preferences or privileges and securities
and use its best efforts and take all steps available to it to
cause such registration statement to become effective sufficiently
in advance of the expiration of such rights, preferences or
privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until the
Company provides to the Depositary an opinion of counsel stating
that the securities to which such rights, preferences or
privileges relate have been registered under the Securities Act of
1933 or do not need to be registered under such Act.
If any other action under the laws of any jurisdiction
or any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization,
consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Fixing of Record
Date for Holders of Receipts. Whenever any cash dividend or other
cash distribution shall become payable or any distribution other
than cash shall be made, or if rights, preferences or privileges
shall at any time be offered, with respect to Stock, or whenever
the Depositary shall receive notice of (a) any meeting at which
holders of Stock are entitled to vote or of which holders of Stock
are entitled to notice or (b) any election on the part of the
Company to redeem any shares of Stock, the Depositary shall in
each such instance fix a record date (which shall be the same date
as the record date fixed by the Company with respect to the Stock)
for the determination of the holders of Receipts who shall be
entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof,
or to give instructions for the exercise of voting rights at any
such meeting, or who shall be entitled to notice of such meeting,
or whose Depositary Shares are to be redeemed.
Section 4.5. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to
the Record Holders of Receipts a notice which shall contain (a)
such information as is contained in such notice of meeting, and
(b) a statement that the holders of Receipts at the close of
business on a specified record date determined pursuant to Section
4.4 will be entitled, subject to any applicable provision of law
and of the Company's Articles of Incorporation or the Authorizing
Resolution, to instruct the Depositary as to the exercise of the
voting rights pertaining to the amount of Stock represented by
their respective Depositary Shares, and a brief statement as to
the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the
Depositary shall endeavor insofar as practicable to vote or cause
to be voted the amount of Stock represented by the Depositary
Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. To the extent any such
instructions request the voting of a fraction of a share of Stock,
the Depositary shall aggregate such fraction with all other
fractions resulting from requests with the same voting
instructions and shall vote the number of whole shares resulting
from such aggregation in accordance with the instructions received
in such requests. The Company hereby agrees to take all
reasonable action which may be deemed necessary by the Depositary
in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific written
instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
Section 4.6. Changes Affecting Deposited Securities
and Reclassifications, Recapitalizations, etc. Upon any change in
par or stated value, split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation or sale of
all or substantially all of the Company's assets affecting the
Company or to which it is a party, the Depositary shall, upon the
instructions of the Company and in such manner as the Company may
deem equitable, (a) make such adjustments in (i) the fraction of
an interest represented by one Depositary Share in one share of
Stock and (ii) the ratio of the redemption price per Depositary
Share to the redemption price of a share of Stock in each case as
may be necessary to fully reflect the effects of such change in
par or stated value, split-up, consolidation or other
reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or such consolidation or sale
and (b) treat any securities which shall be received by the
Depositary in exchange for or upon conversion of or otherwise in
respect of the Stock as new deposited securities under this
Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the new deposited securities so received. In any such
case the Company may in its discretion, direct the Depositary to
execute and deliver additional Receipts, or may call for the
surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Section 4.7. Reports. The Depositary shall make
available for inspection by holders of Receipts at its Corporate
Trust Office, and at such other places as it may from time to time
deem advisable, any reports and communications received from the
Company which are received by the Depositary as the holder of
Stock unless at the time of or prior to receipt the Company
advises the Depositary that such reports or communications have
not been generally available to the holders of Stock of the
Company.
Section 4.8. Lists of Receipt Holders. Upon request
from time to time by the Company, the Depositary shall, without
unreasonable delay, furnish to the Company a list, as of a recent
date, of the names, addresses and holdings of Stock by all persons
in whose names Receipts are registered on the books of the
Depositary.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
Section 5.1. Maintenance of Offices, Agencies,
Transfer Books by the Depositary Registrar. Upon execution of
this Deposit Agreement in accordance with its terms, the
Depositary shall maintain at its Corporate Trust Office facilities
for the execution and delivery, transfer, surrender and exchange
of Receipts, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange
of Receipts, all in accordance with the provisions of this Deposit
Agreement.
The Depositary shall keep books at its Corporate Trust
Office for the transfer of Receipts, which books at all reasonable
times shall be open for inspection by the Record Holders of
Receipts, unless the Company advises the Depositary in a
particular instance that such inspection is not for a proper
purpose reasonably related to such person's interest as an owner
of Depositary Shares evidenced by the Receipts. The Depositary
may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its
duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall
be listed on the New York Stock Exchange, the Company may, upon
consultation with the Depositary, appoint a Registrar for registry
of such Receipts or Depositary Shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange)
may be removed and a substitute registrar appointed by the
Depositary upon the request or with the approval of the Company.
If the Receipts of such Depositary Shares or such Stock are listed
on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery,
transfer, surrender and exchange of such Receipts or such
Depositary Shares or such Stock as may be required by law or
applicable stock exchange regulation.
Section 5.2. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents or the Company. Neither the
Depositary nor any Depositary's Agent nor the Company shall incur
any liability to any holder of any Receipt, if by reason of any
provision of any present or future law, or regulation thereunder,
of the United States of America, or of any other governmental
authority or, in the case of the Depositary or the Depositary's
Agent, by reason of any provision, present or future, of the
Company's Articles of Incorporation or the Authorizing Resolution
or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any
Depositary's Agent or the Company shall be prevented or forbidden
from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion
provided for in this Deposit Agreement.
Section 5.3. Obligations of the Depositary, the
Depositary's Agents and the Company. Neither the Depositary nor
any Depositary's Agent nor the Company assumes any obligation or
shall be subject to any liability under this Deposit Agreement to
holders of Receipts other than that each of them agrees to use its
best judgment and good faith in the performance of such duties as
are specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be liable for any action or any failure to act
by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Stock for deposit, any
holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information. The
Depositary, any Depositary's Agent and the Company may each rely
and shall each be protected in acting upon any written notice,
request, direction or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
The Depositary and the Depositary's Agents may own and
deal in any class of securities of the Company and its affiliates
and in Receipts. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its
affiliates.
Section 5.4. Resignation and Removal of the
Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary hereunder by notice of its
election to do so delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
The Depository may at any time be removed by the Company
by notice of such removal delivered to the Depositary, such
removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall, within 60 days
after the delivery of the notice of resignation or removal, as the
case may be, appoint a successor depositary, which shall be a bank
or trust company having its principal office in the United States
of America and having a combined capital and surplus of at least
$50,000,000. Every successor depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully
vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under
this Deposit Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall
promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder,
shall duly assign, transfer and deliver all rights, title and
interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the
Record Holders of all outstanding Receipts. Any successor
depositary shall promptly mail notice of its appointment to the
Record Holders of Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act. Such successor depositary may authenticate the
Receipts in the name of the predecessor depositary or in the name
of the successor depositary.
Section 5.5. Corporate Notices and Reports. The
Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the
Record Holders of Receipts, in each case at the address recorded
in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by
law, by the rules of any national securities exchange upon which
the Stock, the Depositary Shares or the Receipts are listed or by
the Company's Articles of Incorporation and the Authorizing
Resolution to be furnished by the Company to holders of Stock.
Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such
documents as the Depositary may reasonably request. In addition,
the Depositary will transmit to the holders of Receipts (at the
Company's expense) such other documents as may be requested by the
Company.
Section 5.6. Deposit of Stock by the Company. The
Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any
Stock, if such Stock is required to be registered under the
provisions of the Securities Act of 1933 and no registration
statement is at such time in effect as to such Stock.
Section 5.7. Indemnification by the Company. The
Company agrees to indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of them harmless from,
any loss, liability or expense (including reasonable costs of
investigation, court costs, and attorneys fees and disbursements)
which may arise out of acts performed or omitted in accordance
with the provisions of this Deposit Agreement, as the same may be
amended, modified or supplemented from time to time, and the
Receipts (a) by the Depositary, any Registrar or any of their
respective officers, employees or agents (including any
Depositary's Agent), except for any loss, liability or expense
arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons, or (b) by the Company or any
of its agents.
Section 5.8. Charges and Expenses. The Company shall
pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. The
Company shall pay any and all fees of the Depositary as shall be
agreed to between the Company and the Depositary including all
charges of the Depositary in connection with the initial deposit
of the Stock, the initial issuance of the Receipts, withdrawal of
the Stock by the holders of Receipts and any redemption or
conversion of the Stock. All other transfer and other taxes and
governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of Receipts,
the Depositary incurs charges or expenses for which it is not
otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other reasonable charges and expenses
of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective
obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature
of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the
Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1. Amendment. The form of the Receipts and
any provision of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose any fees, taxes or
charges (other than fees and charges provided for herein), or
which shall otherwise prejudice any substantial existing right of
holders of Receipts, shall not become effective as to outstanding
Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the Record Holders of
outstanding Receipts. Every holder of an outstanding Receipt at
the time any such amendment so becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Sections 2.9 and 2.10 and Article
III, of any owner of any Depositary Shares upon surrender of the
Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the number of whole shares of
Stock, to receive such Stock or, upon conversion of the Stock
represented by the Receipt, to receive shares of Common Stock, and
in each case all money and other property, if any, represented
thereby, except in order to comply with mandatory provisions of
applicable law.
Section 6.2. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the Record Holders of all
Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement if at any time 45 days shall have
expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4.
If any Receipts shall remain outstanding after the date
of termination of this Deposit Agreement, the Depositary
thereafter shall discontinue the transfer of Receipts, shall
suspend the distribution of dividends to the holders thereof, and
shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit
Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Stock, shall sell
rights, preferences or privileges as provided in this Deposit
Agreement and shall continue to deliver the Stock and any money
and other property represented by Receipts upon surrender thereof
by the holders thereof. At any time after the expiration of two
years from the date of termination, the Depositary may sell Stock
then held hereunder at public or private sale, at such places and
upon such terms as the Depositary deems proper and may thereafter
hold the net proceeds of any such sale, together with any money
and other property held by it hereunder, without liability for
interest, for the benefit, pro rata in accordance with their
holdings, of the holders of Receipts which have not theretofore
been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under this Deposit Agreement,
except to account for such net proceeds and money and other
property. Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary,
any Depositary's Agent and any Registrar under Sections 5.7 and
5.8. If this Deposit Agreement is terminated and such number of
shares of the Stock remain outstanding as is necessary to satisfy
the requirements of the New York Stock Exchange, the Company
hereby agrees to use its best efforts to list the underlying Stock
on the New York Stock Exchange (unless the holders of a majority
of the outstanding shares of the Stock shall consent to the
Company not effecting such listing).
ARTICLE VII
MISCELLANEOUS
Section 7.1. Counterparts. This Deposit Agreement may
be executed in any number of counterparts, and by each of the
parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall
constitute one and the same instrument. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's
Agents and shall be open to inspection during business hours at
the Depositary's Corporate Trust Office and the respective offices
of the Depositary's Agents, if any, by any holder of a Receipt.
Section 7.2. Exclusive Benefits of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to
any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any
one or more of the provisions contained in this Deposit Agreement
or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
Section 7.4. Notices. Any and all notices to be given
to the Company hereunder or under the Depositary Receipts shall be
in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telecopy confirmed by
letter, addressed to the Company at Tredegar Street, Richmond,
Virginia 23219, Attention: Corporate Secretary, or at any other
place to which the Company may have transferred its principal
executive office.
Any and all notices to be given to the Depositary
hereunder or under the Depositary Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail or by telecopy confirmed by letter, addressed to the
Depositary at its Corporate Trust Office.
Any and all notices given to a Record Holder of a
Receipt hereunder or under the Depositary Receipts shall be in
writing and shall be deemed to have been duly given if personally
delivered or sent by mail or by telecopy confirmed by letter,
addressed to such Record Holder at the address of such Record
Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or by telecopy shall
be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof, in the case of a
telecopy message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon
any telecopy message received by it from the other or from any
holder of a Receipt, notwithstanding that such telecopy message
shall not subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may
from time to time appoint Depositary's Agents to act in any
respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such
action.
Section 7.6. Holders of Receipts are Parties. The
holders of Receipts from time to time shall be deemed to be
parties to this Deposit Agreement and shall be bound by all of the
terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
Section 7.7. Governing Law. The Deposit Agreement and
the Receipts and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Virginia.
Section 7.8. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, James River Corporation of Virginia
and Wachovia Bank of North Carolina, N.A. have duly executed this
Agreement as of the date first above set forth and all holders of
receipts shall become parties hereto by and upon acceptance by
them of delivery of Receipts issued in accordance with the terms
hereof.
JAMES RIVER CORPORATION OF VIRGINIA
Attest:/s/Debra P. Fitzgerald By /s/Stephen E. Hare
Authorized Officer
Assistant Secretary
WACHOVIA BANK OF NORTH CAROLINA,
N.A.
Attest:/s/ Deborah N. Keaton By /s/Robert W. Seifert
Authorized Officer
Assistant Secretary
<PAGE>
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES,
EACH REPRESENTING A ONE-HUNDREDTH
INTEREST IN A SHARE OF SERIES P 9% CUMULATIVE CONVERTIBLE
PREFERRED STOCK
$10 Par Value
OF
JAMES RIVER CORPORATION OF VIRGINIA
(Incorporated under the Laws of the Commonwealth of Virginia)
No. . . . . . . . . . . . Depositary Shares
(each Depositary Share representing
a one-hundredth interest in a share
of Series P 9% Cumulative
Convertible Preferred Stock ($10 par
value))
1. Wachovia Bank of North Carolina, N.A., a national
banking association with its principal office at the time of the
execution of the Deposit Agreement (as defined below) at Winston-
Salem, North Carolina, as Depositary (the "Depositary"), hereby
certifies that is the registered owner of ______
Depositary Shares ("Depositary Shares"), each Depositary Share
representing a one-hundredth (1/100) interest in a share of Series
P 9% Cumulative Convertible Preferred Stock, par value $10 per
share (the "Stock"), of James River Corporation of Virginia, a
corporation duly organized and existing under the laws of the
Commonwealth of Virginia (the "Company"). The rights, preferences
and limitations of the Stock are set forth in the Company's
Amended and Restated Articles of Incorporation (the "Articles of
Incorporation"), as amended by the Articles of Amendment adopted
by the Company's Board of Directors establishing the Stock as a
series of preferred stock of the Company (the "Articles of
Amendment"), copies of which are on file at the Depositary's
Corporate Trust Office.
2. The Deposit Agreement. Depositary receipts (the
"Receipts"), of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement, dated
as of June 22, 1994 (the "Deposit Agreement"), among the Company,
the Depositary and all holders from time to time of Receipts. The
Deposit Agreement (copies of which are on file at the Depositary's
Corporate Trust Office) sets forth the rights of holders of
Receipts and the rights and duties of the Depositary in respect of
the Stock, and any and all other property and cash, from time to
time deposited thereunder. The statements made on the face and
the reverse of this Receipt are summaries of certain provisions of
the Deposit Agreement and are subject to the detailed provisions
thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall
have the meaning ascribed thereto in the Deposit Agreement.
3. Optional Redemption of Stock for Common Stock.
Whenever the Company shall elect to redeem shares of Stock for
shares of Common Stock pursuant to the terms of the Stock, it
shall (unless otherwise agreed in writing with the Depositary)
give the Depositary not less than 15 nor more than 60 days' notice
of the date of such proposed redemption of Stock and of the number
of shares held by the Depositary to be redeemed. The Depositary
shall mail notice of such redemption and the proposed simultaneous
redemption of a corresponding number of Depositary Shares not less
than 15 and not more than 60 days before the date fixed for
redemption of such Stock and Depositary Shares to the holders of
record on the record date for such redemption (determined as
provided in Paragraph 17 below) of the Depositary Shares to be so
redeemed. In case less than all the outstanding Depositary Shares
are to be so redeemed, the Depositary Shares to be so redeemed
shall be selected by lot or pro rata (as nearly as may be) or in
any other equitable manner determined by the Depositary. Notice
having been mailed as aforesaid, from and after the date set for
redemption (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it on such date), all dividends
in respect of the shares of Stock so called for redemption shall
cease to accrue, the Depositary Shares so called for redemption
shall be deemed no longer to be outstanding, all rights of holders
of Depositary Receipts evidencing such Depositary Shares (except
the right to receive the Common Stock and amounts payable upon
such redemption) shall, to the extent of such Depositary Shares,
cease and terminate and, upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the
Depositary for the consideration therefor specified in said
notice, plus all money and other property, if any, represented by
such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the redemption date have accrued
on the shares of Stock to be so redeemed and have not theretofore
been paid. If less than all of the Depositary Shares evidenced by
this Receipt are called for redemption, the Depositary will
deliver to the holder of this Receipt upon its surrender to the
Depositary, together with the redemption consideration, a new
Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption. The foregoing shall
further be subject to the terms and conditions of the Articles of
Incorporation and Articles of Amendment.
4. Mandatory Conversion of Stock. On July 1, 1998
(the "Mandatory Conversion Date"), each outstanding Depositary
Share shall convert automatically into shares of Common Stock
("Mandatory Conversion") at the rate of one one-hundredth (as such
fraction may from time to time be adjusted, in certain events, so
as to equal at all times the fraction of an interest represented
by one Depositary Share in one share of Stock) of the rate then in
effect for the Stock and the right to receive an amount in cash
equal to all accrued and unpaid dividends on the interest in Stock
represented by such Depositary Share (other than dividends
declared for which the record date is before, and the payment date
is after, the Mandatory Conversion Date) to the Mandatory
Conversion Date, whether or not declared, out of funds legally
available for the payment of dividends, subject to the right of
the Depositary to redeem such Depositary Share pursuant to
paragraph 3, and subject to the conversion of such Depositary
Share pursuant to paragraph 5 at the option of the holder at any
time before the Mandatory Conversion Date. Dividends on the
Depositary Shares shall cease to accrue and the Depositary Shares
shall cease to be outstanding on the Mandatory Conversion Date.
All rights of the holders of Receipts (except the right to receive
the Common Stock and amounts payable upon such conversion) shall
cease and terminate as of the Mandatory Conversion Date.
On or before the Mandatory Conversion Date, the Company shall
deposit, set aside or make such other reasonable provision for the
issuance of such number of shares of Common Stock as are required
to be delivered by the Company in connection with such mandatory
conversion and shall have paid in full to the Depositary the cash
to be delivered in lieu of the issuance of fractional shares of
Common Stock and for accrued and unpaid dividends payable in cash
on the shares of Stock so converted. The Depositary shall mail a
notice of the mandatory conversion, first class, postage pre-paid,
on the Mandatory Conversion Date, to the holder of record on the
Mandatory Conversion Date of the Receipts evidencing the
Depositary Shares to be so converted, at the addresses of such
holders as the same appear on the records of the Depositary; but
neither failure to mail any such notice to one or more such
holders or any defect in any such notice shall affect the
sufficiency of the proceedings for conversion as to any holders.
Each such notice shall state the place or places where Receipts
evidencing Depositary Shares are to be surrendered for conversion
and that dividends in respect of the Stock represented by the
Depositary Shares to be converted will cease to accrue on the
Mandatory Conversion Date.
Upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), the
holder of such Receipts shall be entitled to receive one one-
hundredth (as such fraction may from time to time be adjusted, in
certain events, so as to equal at all times the fraction of an
interest represented by one Depositary Share in one share of
Stock) of the consideration to be received per share in respect of
the shares of Stock plus any dividends declared and paid on the
Common Stock so distributable after the Mandatory Conversion Date.
5. Conversion at Option of Holder. The Depositary
Shares are convertible, in whole or in part, at the option of the
holders thereof, at any time before the Mandatory Conversion Date,
unless previously redeemed, into shares of Common Stock at a rate
for each Depositary Share of one one-hundredth (as such fraction
may from time to time be adjusted, in certain events, so as to
equal at all times the fraction of an interest represented by one
Depositary Share in one share of Stock) of the rate then in effect
for the Stock. The right to convert Depositary Shares called for
redemption shall terminate at the close of business on the
redemption date.
A holder desiring to convert Depositary Shares may effect
such conversion by delivering Receipts evidencing such Depositary
Shares, together with written notice of conversion and a proper
assignment of such Depositary Receipts to the Company or in blank,
to the Depositary at its principal corporate trust office or at
such other place or places as may be designated from time to time
by the Depositary. Holders of Depositary Shares at the close of
business on a record date for the distribution of any cash
dividend received by the Depositary shall be entitled to receive
the dividend payable on such Depositary Shares on the
corresponding "Dividend Payment Date" (as defined in the Articles
of Amendment) notwithstanding the optional conversion of such
Depositary Shares following such record date and before such
Dividend Payment Date. The Company (and thereby the Depositary)
shall make no other payment or allowance for unpaid dividends,
whether or not in arrears, on converted Depositary Shares or for
dividends or distributions on the shares of Common Stock issued
upon conversion.
Upon receipt of properly surrendered Depositary Shares for
conversion, the Depositary shall in turn surrender to the Company
a corresponding number of shares of the Stock for conversion;
provided that no fractional shares of the Stock may be converted.
Upon receipt of such Stock properly surrendered, the Company shall
promptly deliver to the Depositary the Common Stock issuable upon
such conversion and the Depositary shall in turn deliver such
Common Stock to the holders of the surrendered Receipts entitled
thereto.
If less than all of the Depositary Shares evidenced by a
Receipt are surrendered for conversion, the Depositary will
deliver to the holder of such Receipt upon its surrender to the
Depositary, together with the Common Stock issuable upon
conversion, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not surrendered for
conversion.
6. Fractional Shares of Common Stock. No fractional
shares of Common Stock will be issued upon redemption or
conversion of the Depositary Shares. In lieu of any fractional
share otherwise issuable in respect of all Depositary Shares of
any holder which are redeemed or converted on any redemption date
or upon Mandatory Conversion or any optional conversion, such
holder shall be entitled to receive an amount in cash equal to the
same fraction of the (i) Current Market Price (as defined in the
Articles of Amendment) in the case of redemption, or (ii) Closing
Price (as defined in the Articles of Amendment) of the Common
Stock determined (A) as of the fifth trading day immediately
preceding the Mandatory Conversion Date, in the case of Mandatory
Conversion, or (B) as of the second trading day immediately
preceding the effective date of conversion, in the case of an
optional conversion by a holder.
7. Surrender of Receipts and Withdrawal of Stock.
Upon surrender of this Receipt to the Depositary at its Corporate
Trust Office, or at such other offices as it may designate, and
subject to the provisions of the Deposit Agreement (unless the
Depositary Shares evidenced hereby have been theretofore called
for redemption), the holder hereof is entitled to withdraw, and to
obtain delivery, to or upon the order of such holder, of the Stock
and all money and other property, if any, at the time represented
hereby; provided, however, that the holder hereof is not entitled
to withdraw less than a whole share of Stock and therefore, this
Receipt, alone or in the aggregate with other Receipts, must
evidence at least a whole share of Stock; and provided further,
that in the event this Receipt shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so
withdrawn, the Depositary shall, in addition to such number of
whole shares of Stock and the money and other property, if any, to
be so withdrawn, deliver, to or upon the order of such holder, a
new Receipt evidencing such excess number of Depositary Shares.
8. Transfers, Split-ups, Combinations. This Receipt
is transferable on the books of the Depositary upon surrender of
this Receipt to the Depositary, properly endorsed or accompanied
by a properly executed instrument of transfer, and duly stamped as
may be required by law, and upon such transfer the Depositary
shall sign and deliver a Receipt to or upon the order of the
person entitled thereto, as provided in the Deposit Agreement.
This Receipt may be split into other Receipts or combined with
other Receipts into one Receipt, evidencing the same aggregate
number of Depositary Shares as evidenced by the Receipt or
Receipts surrendered.
9. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, transfer,
split-up, combination, delivery for purposes of surrender or
exchange of this Receipt, the Depositary, or any of the
Depositary's Agents, or the Company, may require payment to it of
a sum sufficient for the payment (or, if the Depositary or the
Company shall have made such payment, the reimbursement to it) of
any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to Stock being
deposited or withdrawn), may require proof satisfactory to it as
to the identity and genuineness of any signature and may also
require compliance with such regulations, if any, as it may
establish pursuant to the Deposit Agreement. Any person
presenting Stock for deposit, or any holder of this Receipt, may
be required to file such information, and to execute such
certificates, as the Depositary or the Company may reasonably deem
necessary or proper.
10. Suspension of Delivery, Transfer, etc. The deposit
of Stock, the delivery of this Receipt against Stock, the
transfer, split-up, combination, surrender or exchange of this
Receipt may be refused or suspended (a) during any period when the
register of stockholders of the Company is closed, or (b) if any
such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any
government or governmental body or commission, or under any
provision of the Deposit Agreement or, with the approval of the
Company, for any other reason.
11. Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to this Receipt or with
respect to the Depositary Shares evidenced hereby or with respect
to the Stock (or any fractional interest therein) represented by
such Depositary Shares, such tax (including transfer taxes, if
any) or governmental charge shall be payable by the holder hereof,
subject to certain exceptions in the Deposit Agreement. Transfer
of this Receipt or any withdrawal of the Stock and all money and
other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused until such payment is
made, and any dividends, interest payments or other distributions
may be withheld, or any part or all of the Stock or other property
represented by the Depositary Shares evidenced by this Receipt and
not theretofore sold may be sold for the account of the holder
hereof, and such dividends, interest payments or other
distributions or the proceeds of any such sale may be applied to
any payment of such tax or other governmental charge, the holder
of this Receipt remaining liable for any deficiency.
12. Amendment. The form of the Receipts and any
provisions of the Deposit Agreement may at any time and from time
to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or
desirable. Any amendment which imposes any fees, taxes or charges
(other than fees and charges provided for herein or in the Deposit
Agreement), or which shall otherwise prejudice any substantial
existing right of holders of Receipts, shall not become effective
as to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been given to the Record
Holders of outstanding Receipts. The holder of this Receipt at
the time any such amendment so becomes effective shall be deemed,
by continuing to hold this Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Paragraphs 10 and 11 hereof and of
Sections 2.9 and 2.10 and Article III of the Deposit Agreement, of
the owner of the Depositary Shares evidenced by this Receipt upon
surrender of this Receipt with instructions to the Depositary to
deliver to the holder the number of whole shares of Stock to
receive such Stock or, upon conversion of the Stock represented by
this Receipt, to receive shares of Common Stock and in each case
all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law.
13. Charges of Depositary. The Company will pay all
transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements and all charges
of the Depositary in connection with the initial deposit of the
Stock, the initial issuance of the Receipts, withdrawal of the
Stock by the holders of the Receipts and any redemption or
conversion of the Stock. Holders of Depositary Shares will pay
transfer and other taxes and governmental charges and certain
other charges as are provided in the Deposit Agreement to be for
their account.
14. Title to Receipts. It is a condition of this
Receipt, and every successive holder thereof by accepting or
holding the same consents and agrees, that title to this Receipt
(and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; provided, however, that until
this Receipt shall be transferred on the books of the Depositary
as provided in Section 2.7 of the Deposit Agreement, the
Depositary may, notwithstanding any notice to the contrary, treat
the Record Holder hereof at such time as the absolute owner hereof
for the purpose of determining the person entitled to distribution
of dividends or other distribution or to any notice provided for
in the Deposit Agreement and for all other purposes.
15. Dividends and Distributions. Whenever the
Depositary receives any cash dividend or other cash distribution
on the Stock, the Depositary will, subject to the provisions of
the Deposit Agreement, make such distribution to the holders of
Receipts as nearly as practicable in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that the amount distributed will
be reduced by any amounts required to be withheld by the Company
or the Depositary on account of taxes. Other distributions
received on the Stock may be distributed to such holders of
Receipts as provided in the Deposit Agreement.
16. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer to the Record Holders of the
Stock any rights, preferences or privileges to subscribe for or to
purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall
in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the Record
Holders of Receipts in such manner as the Company may determine.
17. Fixing of Record Date. Whenever any cash dividend
or other cash distribution shall become payable or any
distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever the Depositary shall receive
notice of (a) any meeting at which holders of Stock are entitled
to vote or of which holders of Stock are entitled to notice or (b)
any election on the part of the Company to redeem any shares of
Stock, the Depositary shall in each such instance fix a record
date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the
exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting, or whose Depositary Shares are
to be redeemed.
18. Voting Rights. Upon receipt of notice of any
meeting at which the holders of Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the
Record Holders of Receipts a notice which shall contain (a) such
information as is contained in such notice of meeting, and (b) a
statement that the holders of Receipts at the close of business on
a specified record date determined as provided in Paragraph 17
will be entitled, subject to any applicable provisions of law and
of the Articles of Incorporation or the Articles of Amendment, to
instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of Stock represented by the Depositary
Shares evidenced by their respective Receipts, and a brief
statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such
record date the Depositary shall endeavor insofar as practicable
to vote or cause to be voted the amount of Stock represented by
the Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. To the extent any
such instructions request the voting of a fraction of a share of
Stock, the Depositary shall aggregate such fraction with all other
fractions resulting from requests with the same voting
instructions and shall vote the number of whole shares resulting
from such aggregation in accordance with the instructions received
in such requests. In the absence of specific written instructions
from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary
Shares evidenced by such Receipt.
19. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at its Corporate Trust Office and at such other places as
it may from time to time deem advisable any reports and
communications received from the Company which are received by the
Depositary as the holder of Stock unless at the time of or prior
to the receipt the Company advises the Depositary that such
reports or communications have not been generally available to the
holders of Stock by the Company. The Depositary shall also send
to Record Holders of Receipts copies of such notices, reports and
other financial statements to the extent provided in the Deposit
Agreement when furnished by the Company. The Depositary shall
keep books for the transfer of Receipts, which at all reasonable
times will be open for inspection by the Record Holders of
Receipts, provided that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner
of Depositary Shares evidenced by the Receipts.
20. Liability of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any
present or future law or regulations of any governmental authority
or, in the case of the Depositary or the Depositary's Agent, by
reason of any provision, present or future, of the Articles of
Incorporation or Articles of Amendment or by reason of any act of
God or war or other circumstances beyond the control of the
relevant party, the Depositary, any Depositary's Agent or the
Company shall be prevented or forbidden from doing or performing
any act or thing which the terms of the Deposit Agreement provide
shall or may be done or performed; nor shall the Depositary, any
Depositary's Agent or the Company incur any liability to any
holder of a Receipt by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which
the terms of the Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement.
21. Obligations of the Depositary, the Depositary's
Agents and the Company. Neither the Depositary nor any
Depositary's Agent nor the Company assumes any obligation or shall
be subject to any liability under the Deposit Agreement to holders
of Receipts other than that each of them agrees to use its best
judgment and good faith in the performance of such duties as are
specifically set forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor
the Company shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor
the Company will be liable for any action or failure to act by it
in reliance on documents believed by it to be genuine and to have
been signed or presented by the proper party or parties or upon
the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to
give such advice or information.
22. Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the Record
Holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 45 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment. Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar with respect to
indemnification, charges and expenses.
If any Receipts remain outstanding after the date of
termination, the Depositary thereafter shall discontinue all
functions and be discharged from all obligations as provided in
the Deposit Agreement, except as specifically provided therein.
23. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Virginia.
This Receipt shall not be entitled to any benefits under
the Deposit Agreement or be valid or obligatory for any purpose,
unless this Receipt shall have been executed on behalf of the
Company by the manual or facsimile signature of a duly authorized
officer and executed manually or, if a Registrar for the Receipts
(other than the Depositary) shall have been appointed, by
facsimile by the Depositary by the signature of a duly authorized
representative and, if executed by facsimile signature of the
Depositary, shall have been countersigned manually by such
Registrar by the signature of a duly authorized representative.
The following abbreviations, when used in the
inscription on the face of this certificate, shall be construed as
though they were written out in full according to applicable laws
or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _________________
(State)
Dated:
WACHOVIA BANK OF NORTH CAROLINA, N.A.
Depositary and Registrar
By
Authorized Signature
JAMES RIVER CORPORATION OF VIRGINIA
By
Authorized Officer
<PAGE>
The undersigned holder of this Receipt for ________________
Depositary Shares each representing a one-hundredth (as such fraction
may from time to time be adjusted, in certain events, so as to equal
at all times the fraction of an interest represented by one Depositary
Share in one share of Series P 9% Cumulative Convertible Preferred
Stock (the "Stock")) interest in a share of the Stock (the "Depositary
Shares"), hereby irrevocably exercises the option to convert
__________ shares (which must be whole shares or any integral multiple
of such whole shares) of the Stock, represented by the Receipt into
shares of Common Stock (and any other applicable securities or
property) of James River Corporation of Virginia ("James River") in
accordance with the terms and conditions of the Stock and further as
provided in Section 2.5 of the Deposit Agreement, dated as of June 22,
1994, among James River, Wachovia Bank of North Carolina, N.A., as
Depositary, and the holders from time to time of the Receipts referred
to in such Deposit Agreement, and directs that the securities
deliverable upon such conversion be registered in the name of and
delivered, together with a check in payment for any fractional share
and any other property deliverable upon such conversion, to the
undersigned unless a different name has been indicated below. If
securities are to be registered in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. If the number of shares of the Stock indicated above
is less than the number of shares of such Stock on deposit in respect
of this Receipt, the undersigned directs that the Depositary issue to
the undersigned, unless a different name is indicated below, a new
Receipt evidencing Depositary Shares for the balance of the Stock not
to be converted.
Dated: ___________ Signature: ___________________________________
NOTE: The above signature should
correspond exactly with the name on
the face of this Receipt or with
the name of the assignee appearing
in the assignment form below.
(Please print name and address of registered holder)
Name:___________________________________________________________
Address:____________________________________________________________
(Please indicate other delivery instructions, if applicable)
Name:___________________________________________________________
Address:________________________________________________________
<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and transfers unto the within
Receipt and all rights and interests represented by the
Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints his attorney, to transfer the
same on the books of the within named Depositary, with full power
of substitution in the premises.
Dated: Signature:
NOTE: The above signature
should correspond exactly
with the name on the face
of this Receipt.
Signature Guarantee
EXHIBIT 99
News Release: Immediate Contact: Celeste Gunter
(804) 649-4307
James River Completes Preferred Stock Offering
RICHMOND, VIRGINIA, June 29, 1994 -- James River Corporation announced
today that it has completed its public offering of cumulative convertible
preferred stock.
The Series P 9% Cumulative Convertible Preferred Stock was issued as a Dividend
Enhanced Convertible Stock ("DECS"), in the form of depositary shares, with each
depositary share representing a one-hundredth interest in a share of the
preferred stock.
A total of 15 million depositary shares were sold at a price of $17.25
per share, for total
gross proceeds of $258.8 million.
On July 1, 1998, each of the outstanding depositary shares, if not
previously
redeemed by James River or converted at the option of the holder, will
automatically
convert into one share of James River's common stock, subject to adjustment
in certain
events. The depositary shares are redeemable at the option of the company
on or after
July 1, 1997, at a call price payable in shares of common stock.
The depositary shares
are convertible at the option of the holder, at any time, into .8547 of
a share of common
stock for each depositary share (equivalent to a conversion price of
$20.1825 per share
of common stock), subject to adjustment in certain events.
The offering was managed by Salomon Brothers Inc, Merrill Lynch & Co.,
and
J.P. Morgan Securities Inc. The company intends to use the net proceeds
from this
offering in connection with James River's previously announced acquisition
of the 43.2%
indirect ownership interest in Jamont N.V. ("Jamont") currently owned by
Rayne Holdings
Inc. for approximately $575 million in cash. With operations in 12 European
countries and
1993 sales of approximately $1.5 billion, Jamont produces branded and private
label
tissue and foodservice products for the retail and away-from-home markets.
This
acquisition, which is expected to be completed during James River's third
quarter, will
increase the company's ownership interest in Jamont to 86.4%.<PAGE>
James River Corporation, headquartered in Richmond, Virginia, is
a marketer
and manufacturer of consumer products, food and consumer packaging, and
communications papers. These product lines include brands such as Quilted
Northern(r) bathroom tissue, Brawny(r) paper towels, Dixie(r) cups and plates,
Eureka!(tm) recycled copy paper, Quilt-Rap(tm) sandwich wrap, and Qwik Crisp(r)
microwave packaging. For the year which ended on December 26, 1993, the
company
had net sales of $4.6 billion.
