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): January 5, 1998
McDONALD'S CORPORATION
(Exact name of Registrant as specified in its Charter)
Delaware 1-5231 36-2361282
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
One McDonald's Plaza
Oak Brook, Illinois 60523
(630) 623-3000
(Address and Phone Number of Principal Executive Offices)
Item 5. Other Events
On January 8, 1998, McDonald's Corporation issued $150,000,000 6-3/8%
Debentures due 2028.
(c) Exhibits
1 Underwriting Agreement dated January 5, 1998, by and among
McDonald's Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Goldman, Sachs & Co., J.P. Morgan
Securities Inc., Morgan Stanley & Co. Incorporated and
Salomon Brothers Inc
3(i) Restated Certificate of Incorporation of McDonald's
Corporation effective as of December 29, 1997
3(ii) By-Laws of McDonald's Corporation effective as of December
19, 1997
4(a) Supplemental Indenture No. 1, dated as of January 8, 1998,
supplemental to the Senior Debt Securities Indenture dated
as of October 19, 1996, between McDonald's Corporation and
First Union National Bank, as Trustee
4(b) Specimen Debenture
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
McDONALD'S CORPORATION
(Registrant)
By: /s/ Gloria Santona
------------------------------
Gloria Santona
Vice President, Deputy General Counsel
and Secretary
Exhibit Index
Exhibit
No. Description of Exhibit
------- ----------------------
1 Underwriting Agreement dated September 19, 1997, by and among
McDonald's Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Goldman, Sachs & Co., J.P. Morgan Securities
Inc., Morgan Stanley & Co. Incorporated and Salomon Brothers
Inc
3(i) Restated Certificate of Incorporation of McDonald's Corporation
effective as of December 29, 1997
3(ii) By-Laws of McDonald's Corporation effective as of December 19,
1997
4(a) Supplemental Indenture No. 1, dated as of January 8, 1998,
supplemental to the Senior Debt Securities Indenture dated
as of October 19, 1996, between McDonald's Corporation and
First Union National Bank, as Trustee
4(b) Specimen Debenture
EXHIBIT 1
McDONALD'S CORPORATION
UNDERWRITING AGREEMENT
To the Representatives named in Schedule I hereto of
the Underwriters named in Schedule II hereto
Dear Sirs:
1. Introductory. McDonald's Corporation (the `` Company''), a
Delaware corporation, proposes to sell to the underwriters named
in Schedule II hereto (the ``Underwriters''), for whom you are
acting as representatives (the ``Representatives'', which term
may refer to a single Representative if so indicated on Schedule
I hereto), the principal amount of its securities identified in
Schedule I hereto (the ``Securities''), to be issued under an
Indenture, dated as of October 19, 1996 as supplemented by
Supplemental Indenture No. 1 to be dated as of January 8, 1998
(collectively, the ``Indenture''), between th e Company and First
Union National Bank, as trustee (the ``Trustee''). (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.)
2. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the ``Commission'') a registration statement on
Form S-3 under the Securities Act of 1933, as amended (the
``Securities Act '') (File No. 333-14141), which has become
effective, for the registration under the Securities Act of
the Securities. Such registration statement meets the
requirements set forth in Rule 415(a)(1)(i) under the
Securities Act and complies in all other material respects
with said Rule. The Company proposes to file with the
Commission pursuant to Rule 424(b)(2) or (b)(5) under the
Securities Act a supplement to the form of prospectus included
in registration statement File No. 333-14141 relating to the
Securities and the plan of distribution thereof or, if the
Company elects to rely on Rule 434 under the Securities Act, a
Term Sheet (as such term is hereinafter defined) relating to
the Securities that shall contain such information as is
required or permitted by Rules 434 and 424(b) under the
Securities Act. The registration statement File No. 333-14141,
including the exhibits thereto, is hereinafter called the
``Registration Statement; '' the prospectus in the form in
which it appears in registration statement File No. 333-14141,
is hereinafter called the ``Basic Prospectus;'' and such
supplemented form of prospectus, in the form in which it shall
be filed with the Commission pursuant to Rule 424(b)(2) or
(b)(5) (including the Basic Prospectus as so supplemented) or,
if the Company elects to rely on Rule 434 under the Securities
Act, in the form of the Term Sheet as first filed with the
Commission pursuant to Rule 424(b)(7) (together with the Basic
Prospectus), is hereinafter called the ``Final Prospectus. ''
Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b) is hereinafter
called the ``Preliminary Final Prospectus. '' Any abbreviated
term sheet that satisfies the requirements of Rule 434 under
the Securities Act is hereinafter called the ``Term Sheet. ''
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 Securities Exchange
Act of 1934, as amended (the ``Exchange Act '') on or before
the date of this Agreement, 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 the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424(b) under the Securities Act,
when, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by
reference in the Registration Statement), when any supplement
to the Final Prospectus is filed with the Commission and at
the Closing Date (as hereinafter defined), (i) the
Registration Statement, as amended as of any such time, the
Final Prospectus, as amended or supplemented as of any such
time, and the Indenture will comply in all material respects
with the applicable requirements of the Securities Act, the
Trust Indenture Act of 1939, as amended (the ``Trust Indenture
Act'') and the Exchange Act and the respective rules and
regulations thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time,
will 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; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee, (ii) information, if any, contained in the
Registration Statement or Final Prospectus relating to the
Depository Trust Company ( ``DTC'') and its book-entry system,
or (iii) the information contained in or omitted from the
Registration Statement or the Final Prospectus or any
amendment thereof or 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 and the Final
Prospectus.
(c) The financial statements of the Company and its
consolidated subsidiaries included in the Registration
Statement fairly present the financial condition of the
Company and its consolidated subsidiaries as of the dates
indicated and the results of operations and cash flow for the
periods therein specified; and said financial statements have
been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the
periods involved, except as otherwise stated therein. As used
herein, ``consolidated subsidiaries'' means each subsidiary of
the Company which is included in the consolidated financial
statements of the Company contained in its annual report to
shareholders for 1996 in accordance with the consolidation
policies set forth therein or which would have been so
included if it had been a subsidiary of the Company as of the
date of such consolidated financial statements, and each other
subsidiary of the Company which is included in consolidated
financial statements of the Company prepared from time to time
thereafter.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus and prior to the Closing Date hereinafter
mentioned, except as set forth or contemplated in the Final
Prospectus, (1) neither the Company nor any of its
consolidated subsidiaries has entered into any transaction not
in the ordinary course of business which is material to the
Company and its consolidated subsidiaries, considered as a
whole, (2) there has been no material adverse change in the
properties, business, financial condition or results of
operations of the Company and its consolidated subsidiaries,
considered as a whole, and (3) no legal or governmental
proceeding, which has or will have materially affected the
Company or any of its consolidated subsidiaries, considered as
a whole, or the transactions contemplated by this Agreement,
has been or will have been instituted or threatened.
(e) The Company and each of its Significant Subsidiaries
(herein defined to mean the list of the Company's domestic and
foreign subsidiaries appearing in Exhibit 21 to the Company's
Annual Report on Form 10-K for the year ended December 31,
1996) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their
respective states or jurisdictions of incorporation, with
corporate power and authority to own their properties and to
conduct their business as described in the Basic Prospectus
and Final Prospectus. The Company and each of its Significant
Subsidiaries are duly qualified to do business as foreign
corporations and are in good standing in all states or
jurisdictions in which the ownership or lease of real property
or the conduct of business requires such qualifications,
except where failure to be so qualified cannot be reasonably
expected to have a material adverse effect on the financial
condition of the Company and its consolidated subsidiaries,
considered as a whole. The Company owns all of the issued and
outstanding shares of capital stock of each of the Significant
Subsidiaries, directly or indirectly through one or more
Significant Subsidiaries (except McDonald's Development Italy,
Inc., McDonald's Properties (Australia) Pty., Ltd., McDonald's
Development Italia S.p.A, McDonald's Restaurants (Swisse) S.A.
and McDonald's Australia Limited, of which the Company
directly or indirectly owns a majority of the capital stock),
and all of such shares of the Significant Subsidiaries are
owned free and clear of any liens, charges and encumbrances.
(f) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
(i) conflict with or result in a breach of any of the terms
and provisions of, or constitute a default under, the Restated
Certificate of Incorporation or By-Laws of the Company as
presently in effect or (ii) conflict with or result in a
breach of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party, or
any order, rule or regulation applicable to the Company of any
court or of any federal or state regulatory body or
administrative agency or other governmental body having
jurisdiction over the Company or any of its properties, except
such conflicts, breaches or defaults referred to in this
subclause (ii) which would not materially and adversely affect
the Company and its consolidated subsidiaries considered as a
whole.
(g) The Securities have been duly and validly authorized
and, when issued, authenticated and delivered against payment
therefor in accordance with the terms of the Indenture and
this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the
Indenture, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and general
principles of equity, and will conform to the description
thereof contained in the Final Prospectus. The Indenture has
been duly authorized by the Company and will be a valid and
legal instrument enforceable in accordance with its terms,
except as enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws affecting
the enforceability of creditors' rights and general principles
of equity. The Indenture is duly qualified under the Trust
Indenture Act.
3. Sale, Purchase and Delivery of Securities. On the basis of
the representations and warranties herein contained, but subject
to the terms and conditions herein set forth, the Company hereby
agrees to sell to the Underwriters, severally and not jointly,
and each Underwriter, severally and not jointly (unless otherwise
indicated on Schedule I hereto), agrees to purchase from the
Company, at the purchase price set forth in Schedule I hereto,
the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts
of Securities to be purchased by the Underwriters shall be as set
forth in Schedule II hereto, less the respective amounts of
Contract Securities determined as provided below. Securities to
be purchased by the Underwriters are herein sometimes called the
``Underwriters' Securities'' and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called ``Contract Securities''.
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities 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 percentage set forth in Schedule I hereto
of the principal amount of the Securities 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
make Delayed Delivery Contracts in all cases where sales of
Contract Securities 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 principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount 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 principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities
as the principal amount of Securities set forth opposite the name
of such Underwriter bears to the aggregate principal amount 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 principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate
principal amount of Contract Securities.
Delivery of and payment for the Underwriters' Securities shall
be made at the office, 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 9 hereof (such date and time of delivery and
payment for the Underwriters' Securities being herein called the
``Closing Date''). Delivery of the Underwriters' Securities 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 in Federal (same day) funds, or, if
so indicated on Schedule I hereto, in New York Clearinghouse
(next day) funds. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as
the Representatives may request not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM on
the business day prior to the Closing Date.
If so provided in Schedule I hereto, Underwriters' Securities
will be represented by one or more definitive global Securities
in book-entry form which will be deposited by or on behalf of the
Company with DTC or DTC's designated custodian. In such case, (a)
delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters by causing DTC to credit the Underwriters'
Securities to the account of the Representatives at DTC, and (b)
the Company will cause the certificates representing the
Underwriters' Securities to be made available to the
Representatives for inspection not later than 1:00 p.m., New York
City time, on the business day prior to the Closing Date at the
office of DTC or its designated custodian.
4. Covenants of the Company. The Company covenants and agrees
with the Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing, and the
Company 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 to be filed with the Commission pursuant to Rule
424 and/or Rule 434 under the Securities Act. The Company will
promptly advise the Representatives (i) when the Final
Prospectus shall have been filed with the Commission pursuant
to Rule 424 and/or Rule 434 under the Securities Act, (ii)
when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) 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 (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
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 as soon as possible the
withdrawal thereof.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any
amendments or supplements to the Registration Statement or
Final Prospectus which, in the opinion of counsel for the
Underwriters, may be necessary to enable the several
Underwriters to continue the sale of the Securities, and the
Company will use its best efforts to cause any such amendments
to become effective and any such supplements to be filed with
the Commission and approved for use by the Underwriters as
promptly as possible. If at any time when a prospectus
relating to the Securities is required to be delivered under
the Securities Act, any event relating to or affecting the
Company occurs as a result of which the Final Prospectus as
then amended or supplemented would include an untrue statement
of a material fact, or omit to state any material fact
necessary to make the statement therein not misleading, or if
it is necessary at any time to amend or supplement the Final
Prospectus to comply with the Securities Act or the Exchange
Act or the respective rules thereunder, the Company promptly
will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or
omission or which will effect such compliance. For the
purposes of this paragraph (b), the Company will furnish such
information with respect to itself as the Representatives may
from time to time reasonably request.
(c) As soon as practicable, but not later than 90 days
after the end of the 12-month period beginning at the end of
the current fiscal quarter of the Company, the Company will
make generally available to its security holders and you an
earnings statement covering a period of at least twelve months
beginning not earlier than said effective date which shall
satisfy the provisions of Section 11(a) of the Securities Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto and
documents incorporated by reference therein) and each
amendment thereto which shall become effective on or prior to
the Closing Date and, so long as delivery of a prospectus by
an Underwriter or dealer may be required by the Securities
Act, as many copies of any Preliminary Final Prospectus and
the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will furnish such information and execute
such instruments as may be required to qualify the Securities
for sale under the securities or blue sky laws of such
jurisdictions within the United States as you designate, will
continue such qualifications in effect so long as required for
distribution and will arrange for the determination of the
legality of the Securities for purchase by institutional
investors. The Company shall not be required to register or
qualify as a foreign corporation nor, except as to matters and
transactions relating to the offer and sale of the Securities,
consent to service of process in any jurisdiction.
(f) So long as the Securities shall be outstanding, the
Company will deliver to you (i) as soon as practicable after
the end of each fiscal year, consolidated balance sheets,
statements of income, retained earnings and cash flows of the
Company and its consolidated subsidiaries, as at the end of
and for such year and the last preceding year, all in
reasonable detail and audited by independent public
accountants, (ii) as soon as practicable after the end of each
of the first three quarterly periods in each fiscal year,
unaudited consolidated balance sheets, statements of income,
retained earnings and cash flows of the Company and its
consolidated subsidiaries, as at the end of and for such
period and for the comparable period of the preceding year,
all in reasonable detail, (iii) as soon as available, all such
proxy statements, financial statements and reports as the
Company shall send or make available to its stockholders
generally, and (iv) copies of all such annual, periodic and
current reports as the Company or any subsidiary shall file
with the Commission or any securities exchange.
(g) The Company will apply for the listing of the
Securities on the New York Stock Exchange, Inc. if requested
to do so by you.
(h) The Company will pay all costs and expenses in
connection with the transactions herein contemplated,
including, but not limited to, the fees and disbursements of
its counsel; the fees, costs and expenses of preparing,
printing and delivering the Indenture and the Securities; the
fees, costs and expenses of the Trustee; accounting fees and
disbursements; the costs and expenses in connection with the
qualification or exemption of the Securities under state
securities or blue sky laws, including filing fees and
reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with
any Blue Sky Memorandum; the costs and expenses in connection
with the preparation, printing and filing of the Registration
Statement (including exhibits thereto) and the Basic,
Preliminary Final, and Final Prospectus, the preparation and
printing of this Agreement and the furnishing to the
Underwriters of such copies of each prospectus as the
Underwriters may reasonably require; and the fees of rating
agencies. It is understood, however, that, except as provided
in this Section and in Sections 7 and 8 hereof, the
Underwriters will pay all of their own costs and expenses,
including the fees of their counsel and any advertising
expenses connected with any offers they may make.
(i) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any debt
securities (other than up to $200,000,000 principal amount of
the Company's medium term notes to be issued pursuant to the
Company's Registration Statements on Form S-3 (File Nos. 33-
42642 and 33-60939)) covered by the Registration Statement or
any other registration statement filed under the Securities
Act.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for
the Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the written statements of Company
officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or shall be pending, or, to the knowledge
of the Company, shall be contemplated by the Commission.
(b) No event, nor any material adverse change in the
condition of the Company, financial or otherwise, shall have
occurred, nor shall any event exist which makes untrue or
incorrect any material statement or information contained in
the Registration Statement or the Final Prospectus or which is
not reflected in the Registration Statement or the Final
Prospectus, but should be reflected therein in order to make
the statements or information contained therein not
misleading.
(c) You shall not have advised the Company that the
Registration Statement or any prospectus, or any amendment or
supplement thereto, contains an untrue statement of fact
which, in the opinion of counsel for the Underwriters, is
material, or omits to state a fact which, in the opinion of
such counsel, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(d) You shall have received at the Closing Date (or prior
thereto as indicated) the following:
(i) An opinion from Gloria Santona, Vice President,
Deputy General Counsel and Secretary, or a Vice President
and Assistant General Counsel of the Company, dated the
Closing Date, to the effect that:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under
the laws of the State of Delaware with corporate power
and authority to own its properties and conduct its
business as described in the Final Prospectus.
(B) The Indenture has been duly authorized, executed
and delivered by the Company and the Trustee, is duly
qualified under the Trust Indenture Act, and is a valid
and legally binding obligation of the Company
enforceable in accordance with its terms, except as
enforcement thereof may be limited by applicable
bankruptcy, insolvency, moratorium and other laws
affecting the enforceability of creditors' rights and
general principles of equity.
(C) The Securities have been duly and validly
authorized by all necessary corporate action and, when
duly executed on behalf of the Company, duly
authenticated by the Trustee or the Trustee's
authenticating agent, and duly delivered to the several
Underwriters against payment therefor in accordance with
the provisions of this Agreement, in the case of the
Underwriters' Securities, or to the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of
Contract Securities, will constitute legal, valid and
binding obligations of the Company enforceable in
accordance with their terms and entitled to all the
benefits of the Indenture, except as enforcement thereof
may be limited by applicable bankruptcy, insolvency,
moratorium and other laws affecting the enforceability
of creditors' rights and general principles of equity.
(D) The Indenture and the Securities conf orm as to
legal matters with the statements concerning them made
in the Final Prospectus, and such statements accurately
set forth the provisions thereof required to be set
forth in the Final Prospectus.
(E) This Agreement and any Delayed Delivery Contracts
have been validly authorized, executed and delivered on
behalf of the Company.
(F) The Registration Statement and any amendments
thereto have become effective under the Securities Act,
and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and
no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act,
and the Registration Statement, the Final Prospectus,
and each amendment thereof or supplement thereto (except
for the financial statements and other financial data
included therein, as to which such counsel need express
no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the
Exchange Act and the respective rules thereunder; such
counsel has no reason to believe that either the
Registration Statement or the Final Prospectus, or any
such amendment or supplement, contains any untrue
statement of a material fact or omits to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading; the
descriptions in the Registration Statement and Final
Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are
accurate and fairly present the information required to
be shown; and such counsel does not know of any legal or
governmental proceedings required to be described in the
Final Prospectus which are not described as required,
nor of any contracts or documents of a character
required to be described in the Registration Statement
or Final Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed
as required.
(G) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof or
of any Delayed Delivery Contracts will not result in a
breach of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage,
deed of trust or other agreement or instrument to which,
to the knowledge of such counsel, the Company is a
party, or the Restated Certificate of Incorporation or
By-Laws of the Company as presently in effect or, to the
knowledge of such counsel, any order, rule or regulation
applicable to the Company of any court or of any federal
or state regulatory body or administrative agency or
other governmental body having jurisdiction over the
Company or its properties.
(H) No authorization, approval, consent or other
action of any governmental authority or agency is
required in connection with the sale of the Securities
as contemplated by this Agreement or in any Delayed
Delivery Contracts except such as may be required under
the Securities Act or under state securities or blue sky
laws.
(ii) Such opinion or opinions of counsel for the
Underwriters, dated the Closing Date, with respect to the
sufficiency of all corporate proceedings and other legal
matters relating to this Agreement, any Delayed Delivery
Contracts, the validity of the Securities, the Registration
Statement, the Final Prospectus and other related matters
as you may reasonably request. The Company shall have
furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to
render their opinions. In connection with such opinions,
such counsel may rely on representations or certificates of
officers of the Company.
(iii) A certificate of the President or a Vice
President, and the Chief Financial Officer of the Company
or its Treasurer, dated the Closing Date, to the effect
that:
(A) The representations and warranties of the Company
in Section 2 of this Agreement are true and correct 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.
(B) No stop order suspending the effectiveness of the
Registration Statement has been issued and no
proceedings for that purpose have been instituted or are
pending or, to the knowledge of the respective signers
of the certificate, are contemplated under the
Securities Act.
(C) The signers of the certificate have carefully
examined the Registration Statement and the Final
Prospectus; neither the Registration Statement, the
Final Prospectus nor any amendment or supplement thereto
includes, as of the Closing Date, any untrue statement
of a material fact or omits, as of the Closing Date, to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
since the latest respective dates as of which
information is given in the Registration Statement,
there has been no material adverse change in the
financial position, business or results of operations of
the Company and its consolidated subsidiaries,
considered as a whole, except as set forth in or
contemplated by the Final Prospectus; and since the
effective date of the Registration Statement, as
amended, no event has occurred which is required to be
set forth in the Final Prospectus which has not been so
set forth.
(iv) A letter from Ernst & Young LLP, dated the Closing
Date, addressed to you substantially in the form heretofore
approved by you.
(e) Prior to the Closing Date, the Company shall have
furnished to you such further certificates and documents as
you may reasonably request.
(f) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any condition of the Underwriters' obligations hereunder
required to be satisfied prior to the Closing Date is not so
satisfied, this Agreement may be terminated by you by notice in
writing or by facsimile transmission to the Company.
In rendering the opinions described in Sections 5(d)(i) and
(ii) above, Ms. Gloria Santona, other counsel for the Company,
and counsel for the Underwriters may, as to matters involving the
laws of any state other than Illinois, rely upon the opinion or
opinions of local counsel satisfactory to you, but in such case a
signed copy of each such opinion shall be furnished to you.
All such opinions (including opinions, if any, of local
counsel), certificates, letters and documents will be in
compliance with the provisions hereof only if they are in all
material respects satisfactory to you and to counsel for the
Underwriters, as to which both you and such counsel shall act
reasonably. The Company will furnish you with such conformed
copies of such opinions, certificates, letters and documents as
you request.
You, on behalf of the Underwriters, may waive in writing the
compliance by the Company of any one or more of the foregoing
conditions or extend the time for their performance.
6. Representation of the Underwriters. Each of t he
Underwriters severally represents and warrants to the Company
that the information furnished to the Company in writing by such
Underwriter or by you expressly for use in the preparation of the
Registration Statement or the Final Prospectus does not, and any
amendments thereof or supplements thereto thus furnished will
not, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
7. Termination of Agreement. This Agreement may be terminated
by you on behalf of the Underwriters by notice in writing
delivered to the Company prior to the Closing Date if prior to
such time (i) trading in the Company's common stock shall have
been suspended by the Commission on the New York Stock Exchange
for a period of twenty-four hours or more or trading in
securities generally on the New York Stock Exchange shall have
been suspended or materially limited, in either case to such a
degree as would in your judgment materially adversely affect the
market for the Securities; (ii) a general moratorium on
commercial banking activities in the State of New York or the
United States shall have been declared by Federal authorities; or
(iii) there has occurred any material outbreak, or material
escalation, of hostilities involving the United States or other
national or international calamity or crisis, of such magnitude
and severity in its effect on the financial markets of the United
States, in your reasonable judgment, as to prevent or materially
impair the marketing, or enforcement of contracts for sale, of
the Securities.
If this Agreement shall be terminated by you because of any
failure on the part of the Company to comply with any of the
terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company shall pay, in
addition to the costs and expenses referred to in Section 4(h),
all reasonable out-of-pocket expenses incurred by the
Underwriters in contemplation of the performance by them of their
obligations hereunder, including but not limited to the
reasonable fees and disbursements of counsel for the
Underwriters, the Underwriters' reasonable printing and traveling
expenses, and postage and telephone charges relating directly to
the offering contemplated by the Final Prospectus, and also
including advertising expenses incurred after the effective date
of the Registration Statement, it being understood that such out-
of-pocket expenses shall not include any compensation, salaries
or wages of the officers, partners or employees of any of the
Underwriters.
The Company shall not in any event be liable to the several
Underwriters for damages on account of loss of anticipated
profits arising out of the transactions contemplated by this
Agreement.
8. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of the
Securities Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject, under
the Securities Act, the Exchange Act 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 any material fact
contained in the Registration Statement or any amendment thereof,
the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, or any amendment 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 will
reimburse each Underwriter and each such controlling person for
any legal or other expenses reasonably incurred by such
Underwriter or such controlling person 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 an
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 the preparation thereof; and provided, further, that the
foregoing indemnification with respect to the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall
not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities,
if such Underwriter failed to send or give copies of the Final
Prospectus, as amended or supplemented, excluding documents
incorporated therein by reference, to such person at or prior to
the written confirmation of the sale of such Securities to such
person in any case where such delivery is required by the
Securities Act and the untrue statement or omission of a material
fact contained in the Basic Prospectus or any Preliminary Final
Prospectus was corrected in the Final Prospectus (or the Final
Prospectus as amended or supplemented). 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 person, if any, who controls the
Company either within the meaning of the Securities Act or the
Exchange Act, each of its directors and each of its officers who
has signed the Registration Statement, against any losses,
claims, damages or liabilities to which the Company, any such
controlling person or any such director or officer may become
subject, under the Securities Act, the Exchange Act, or
otherwise, 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 you specifically for
use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition
to any liability which any Underwriter may otherwise have. The
Company acknowledges that the statements set forth in the last
paragraph of the cover page of the Final Prospectus and under the
heading ``Underwriting'' or ``Plan of Distribution '' and, if
Schedule I hereto provides for sale of Securities pursuant to
delayed delivery arrangements, in the last sentence under the
heading ``Delayed Delivery Arrangements'' in the Final Prospectus
constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the Final
Prospectus, and you confirm that such statements are correct.
This indemnity agreement will be in addition to any liability
which each such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 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, notify
the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section. In case any
such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in and, to the
extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided,
however, that if the defendants in 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 in addition to those
available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume
such legal defenses and to otherwise participate in the defense
of such action on behalf of such indemnified party or parties.
Upon receipt by such indemnified party of notice from the
indemnifying party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives of the Underwriters in the case
of subparagraph (a), representing the indemnified parties under
subparagraph (a) or (b), as the case may be, who are parties to
such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; provided, further, that,
with respect to legal and other expenses incurred by an
indemnified party for which an indemnifying party shall be liable
hereunder, all such legal fees and expenses shall be reimbursed
by the indemnifying party as they are incurred.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 8 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on grounds of policy or otherwise, the Company
and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of
such discount and the purchase price of the Securities set forth
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (i) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter
hereunder and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an
Underwriter within the meaning of the Securities Act shall have
the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the
Securities 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 clause (i)
of this paragraph (d). 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 or otherwise than under this paragraph (d).
9. Default by an Underwriter. If the Underwriters' obligations
to purchase Securities pursuant to Section 3 hereof are several
and not joint and if any one or more Underwriters shall fail to
purchase and pay for any of the Securities 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 and unless otherwise
provided in Schedule I hereto, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite
their names in Schedule II hereto bear to the aggregate amount of
Securities set opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which
the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities
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 Securities, and if such
nondefaulting Underwriters do not purchase all the Securities,
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 9, 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.
10. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations and
warranties of the Company and the several 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, the Company or any of its officers or
directors or any controlling person, and will survive delivery of
and payment for the Securities. The provisions of Sections 7 and
8 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 sent by facsimile
transmission and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or sent by facsimile transmission and confirmed to the
Company at One McDonald's Plaza, Oak Brook, Illinois 60523,
Attention of the Treasurer, with a copy to the Controller.
12. Successors; Governing Law. This Agreement will inure to
the benefit of and be binding upon the parties hereto and the
officers and directors and controlling persons referred to in
Section 8 hereof and their respective successors, assigns, heirs,
executors and administrators, and no other persons will have any
right or obligation hereunder. The terms ``successors'' and
``assigns'' as used herein shall not include a purchaser as such
from any Underwriter. This Agreement shall be governed by and
construed and enforced in accordance with, the internal laws of
the State of Illinois.
13. Business Day. For purposes of this Agreement, ``business
day'' means any day on which the New York Stock Exchange is open
for trading.
If the foregoing is in accordance with your understanding of
our agreement, sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its
terms.
Very truly yours,
McDONALD'S CORPORATION
By: /s/ Carleton D. Pearl
-------------------------
The foregoing Underwriting Agreement is hereby confirmed and
accepted by us in Chicago, Illinois, acting on behalf of
ourselves, the other Representatives (if any), and the several
Underwriters (if any) named in Schedule II annexed hereto, as of
the date first above written.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Bradley Jones
---------------------
Date: January 5, 1998
SCHEDULE I
Underwriting Agreement dated January 5, 1998
Registration Statement No. 333-14141
Representatives:
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Title, Purchase Price and Description of Securities:
Title:
6 3/8% Debentures due 2028
Aggregate Principal Amount:
$150,000,000
Price to Public:
99.642%
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable):
98.767% plus accrued interest, if any,
from January 8, 1998
Maturity:
January 8, 2028
Interest Rate:
6 3/8%
Interest Payment Dates:
January 8 and July 8
Regular Record Dates:
January 1 and July 1, except as otherwise
described in the Prospectus Supplement
Redemption Provisions:
At the option of the Company in whole or
in part, at any time (a ``Company
Redemption Date'') with at least 30 days'
and not more than 60 days' notice, at a
redemption price equal to the greater of
(i) 100% of the principal amount of the
Debentures to be redeemed or (ii) the sum
of the present values of the remaining
scheduled payments of principal and
interest thereon discounted to the Company
Redemption Date on a semi-annual basis at
the Treasury Rate (as described in the
Prospectus Supplement) plus 10 basis
points, plus, in either case, accrued and
unpaid interest on the principal amount
being redeemed to the Company Redemption
Date
Sinking Fund Provisions:
None
Sale and Delivery Provisions under Section 3:
Obligation to Purchase is:
several and not joint / /
several and not joint; provided, however
that, notwithstanding the provisions of
Section 9 of the Underwriting Agreement,
the Representative(s) listed above will,
subject to the terms and conditions
hereof, purchase or cause to be purchased
any Securities which any defaulting
Underwriter or Underwriters have agreed
but failed or refused to purchase pursuant
to Section 3 hereof /x/
joint and several / /
Payment to Be Made in:
New York Clearinghouse (next day) funds / /
or Federal (same day) funds /x/
Delivery of Securities:
Physical delivery to Underwriters through
Representatives / /
or delivery to Underwriters through
facilities of DTC by delivery to DTC of
one or more definitive global securities
in book-entry form /x/
Closing Date, Time and Location:
January 8, 1998, 9:00 a.m.,
Gardner, Carton & Douglas,
321 N. Clark Street, Chicago, IL 60610
Address for Notice to Representatives:
c/o Merrill Lynch, Pierce, Fenner &
Smith Incorporated
North Tower--5th Floor
World Financial Center
Syndicate Department
New York, New York 10281-1305
SCHEDULE II
Underwriters Principal Amount
Merrill Lynch, Pierce,
Fenner & Smith Incorporated $ 30,000,000
Goldman, Sachs & Co. 30,000,000
J.P. Morgan Securities Inc. 30,000,000
Morgan Stanley & Co. Incorporated 30,000,000
Salomon Brothers Inc 30,000,000
------------
$150,000,000
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from McDonald's
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery Date"
$
principal amount of the Company's (the "Securities") offered by
the Company's Final Prospectus dated , 19 , receipt
of a copy of which is hereby acknowledged, at a purchase price
of % of the principal amount thereof, plus accrued
interest, if any, thereon from , 19 , to the date of
payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM on the Delivery Date to or
upon the order of the Company in New York Clearinghouse (next
day) funds or Federal (same day) funds, as specified in Schedule
I to the Underwriting Agreement referred to in the Final
Prospectus mentioned above, at your office or at such other
places as shall be agreed between the Company and the undersigned
upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by
written communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is
received, the Securities will be registered in the name of the
undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation
of the Company to sell and deliver Securities on the Delivery
Date, shall be subject to the conditions (and neither party shall
incur any liability by reason of the failure thereof) and (1) the
purchase of Securities 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 principal
amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Final Prospectus
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
Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the
failure of any purchaser to take delivery of and make payment for
the Securities 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 and enforced
in accordance with, the internal laws of the State of Illinois.
Very truly yours,
(Name of Purchaser)
By
(Signature and Title of
Officer)
(Address)
Accepted:
McDONALD'S CORPORATION
By
(Authorized Signature)
EXHIBIT 3(i)
RESTATED CERTIFICATE OF INCORPORATION
OF
McDONALD'S CORPORATION
(originally incorporated on December 21, 1964
under the name "Regrub, Inc.")
FIRST: The name of the corporation is McDONALD'S CORPORATION.
SECOND: Its registered office in the State of Delaware is
located at 1013 Centre Road, Wilmington, New Castle County, Delaware
19805.
The name and address of its registered agent is The Prentice-
Hall Corporation System, Inc., 1013 Centre Road, Wilmington, New Castle
County, Delaware 19805.
THIRD: The nature of the business of the Corporation and the
objects and purposes to be transacted, promoted or carried on are as
follows:
1. To obtain by license or otherwise and to grant to others
by license or otherwise the right to the use of drive-in food
establishment systems and food service systems of every kind and
character, and to manage and operate drive-in and other restaurants and
eating places of all kinds.
2. To manufacture, construct, lease, purchase and otherwise
acquire; to hold, own, repair, maintain, operate and invest, trade and
deal in; to lien, mortgage, pledge and otherwise encumber, and to let,
assign, transfer, sell and otherwise dispose of goods, wares and
merchandise and personal property of every kind and description and
wherever situated.
3. To the same extent as natural persons might or could do,
to purchase or otherwise acquire, hold, own, maintain, work, develop,
sell, lease, sublease, exchange, hire, convey, mortgage or otherwise
dispose of and turn to account and deal in, lands, leaseholds, any
interests, estates and rights in real property, any personal or mixed
property, and franchises, rights, licenses, permits or privileges of
every character.
4. To acquire by purchase, exchange or otherwise, all, or any
part of, or any interest in, the properties, assets, business and good
will of any one or more persons, firms, associations, corporations or
syndicates engaged in any business which the Corporation is authorized to
engage in; to pay for the same in cash, property or its own or other
securities; to hold, operate, reorganize, liquidate, sell or in any
manner dispose of the whole or any part thereof; and in connection
therewith, to assume or guarantee performance of any liabilities,
obligations or contracts of such persons, firms, associations,
corporations or syndicates, and to conduct in any lawful manner the whole
or any part of any business thus acquired.
5. To acquire by purchase, subscription, contract or
otherwise, and to hold for investment or otherwise, sell, exchange,
mortgage, pledge or otherwise dispose of, or turn to account or realize
upon, and generally to deal in and with, any and all kinds of securities
issued or created by, or interests in, corporations, associations,
partnerships, firms, trustees, syndicates, individuals, municipalities or
other political or governmental divisions or subdivisions, or any
thereof, or by any combinations, organizations or entities whatsoever,
irrespective of their form or the name by which they may be described;
and to exercise any and all rights, powers, and privileges of individual
ownership or interest in respect of any and all such securities and
interests, including the right to vote thereon and to consent and
otherwise act with respect thereto; to do any and all acts and things for
the preservation, protection, improvement and enhancement in value of any
and all such securities or interests, and to aid by loan, subsidy,
guaranty or in any other manner permitted by law those issuing, creating,
or responsible for any such securities or interests.
6. To develop, apply for, obtain, register, purchase, lease,
take licenses in respect of or otherwise acquire, and to hold, own, use,
operate, enjoy, turn to account, grant licenses in respect of,
manufacture under, introduce, sell, assign, mortgage, pledge or otherwise
dispose of any and all inventions, devices, formulae, processes,
improvements and modifications thereof, letters patent and all rights
connected therewith or appertaining thereunto, copyrights, trademarks,
trade names, trade symbols and other indications of origin and ownership,
franchises, licenses, grants and concessions granted by or recognized
under the laws of the United States of America or of any state or
subdivision thereof or of any other country or subdivision thereof.
7. To loan money upon the security of real and/or personal
property of whatsoever name, nature or description, or without security.
8. To borrow money for any of the purposes of the
Corporation, from time to time, and without limit as to amount; to issue
and sell its own securities in such amounts, on such terms and
conditions, for such purposes and for such prices, as the Board of
Directors shall determine; and to secure such securities, by mortgage
upon, or the pledge of, or the conveyance or assignment in trust of, the
whole or any part of the properties, assets, business and good will of
the Corporation, then owned or thereafter acquired.
It is the intention that the objects and purposes set forth in
the foregoing clauses of this Article Third shall not, unless otherwise
specified herein, be in any wise limited or restricted by reference to,
or inference from, the terms of any other clause of this or any other
article in this Certificate, but that the objects and purposes specified
in each of said clauses shall be regarded as independent objects and
purposes.
It is also the intention that the foregoing clauses shall be
construed as powers as well as objects and purposes; that the Corporation
shall be authorized to conduct its business or hold property in any part
of the United States and its possessions, and foreign countries; that the
foregoing enumeration of specific powers shall not be held to limit or
restrict in any manner the general powers of the Corporation; and that
generally the Corporation shall be authorized to exercise and enjoy all
other powers conferred on corporations by the laws of Delaware.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is Three Billion Six Hundred
Sixty-Five Million (3,665,000,000), consisting of Three Billion Five
Hundred Million (3,500,000,000) shares of Common Stock with one cent
($.01) par value and One Hundred Sixty-Five Million (165,000,000) shares
of Preferred Stock without par value.
A. COMMON STOCK
Each share of Common Stock shall be equal to every other share
of Common Stock in every respect. Subject to any exclusive voting rights
which may vest in holders of Preferred Stock under the provisions of any
series of the Preferred Stock established by the Board of Directors
pursuant to authority herein provided, the shares of Common Stock shall
entitle the holders thereof to one vote for each share upon all matters
upon which stockholders have the right to vote.
B. PREFERRED STOCK
(1) Preferred Stock may be issued from time to time in one or
more series, each of such series to have such designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as are stated and
expressed in this Article and in the resolution or resolutions providing
for the issuance of such series adopted by the Board of Directors as
hereinafter provided.
(2) Authority is hereby expressly granted to the Board of
Directors subject to the provisions of this Article to authorize the
issuance of one or more series of Preferred Stock and, with respect to
each series, to fix by resolution or resolutions providing for the
issuance of such series:
(a) The number of shares to constitute such series and
the distinctive designations thereof;
(b) The dividend rate or rates to which such shares shall
be entitled and the restrictions, limitations and conditions upon the
payment of such dividends, whether dividends shall be cumulative or non-
cumulative and, if cumulative, the date or dates from which dividends
shall accumulate, the dates on which dividends, if declared, shall be
payable, and the preferences or relations to the dividends payable on any
other series of Preferred Stock;
(c) Whether or not all or any part of the shares of such
series shall be redeemable, and if so, the limitations and restrictions
with respect to such redemptions, the manner of selecting shares of such
series for redemption if less than all shares are to be redeemed, and the
amount, if any, in addition to any accrued dividends thereon, which the
holder of shares of such series shall be entitled to receive upon the
redemption thereof, which amount may vary at different redemption dates
and may be different with respect to shares redeemed through the
operation of any retirement or sinking fund and with respect to shares
otherwise redeemed;
(d) The amount in addition to any accrued dividends
thereon which the holders of shares of such series shall be entitled to
receive upon the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, which amount may vary depending on whether
such liquidation, dissolution or winding up is voluntary or involuntary
and, if voluntary, may vary at different dates;
(e) Whether or not the shares of such series shall be
subject to the operation of a purchase, retirement or sinking fund, and,
if so, whether such purchase, retirement or sinking fund shall be
cumulative or non-cumulative, the extent and the manner in which such
fund shall be applied to the purchase or redemption of the shares of such
series for retirement or to other corporate purposes and the terms and
provisions relative to the operation thereof;
(f) Whether or not the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other class
or classes, or of any other series of the same class, and if so
convertible or exchangeable, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same;
(g) The voting powers, if any, of such series in addition
to the voting powers provided by law; except that such powers shall not
include the right to have more than one vote per share;
(h) Any other preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof as shall not be inconsistent with law or with this
Article.
Notwithstanding the fixing of the number of shares constituting
a particular series upon the issuance thereof, the Board of Directors may
at any time thereafter authorize the issuance of additional shares of the
same series, or decrease the number of shares constituting such series
(but not below the number of shares of such series then outstanding).
(3) All shares of any one series of Preferred Stock shall be
identical with all other shares of the same series except that shares of
any one series issued at different times may differ as to the dates from
which dividends thereon shall be cumulative; and all series shall rank
equally and be identical in all respects, except as permitted by the
foregoing provisions of paragraph B. (2).
(4) (a) The holders of Preferred Stock shall be entitled to
receive cash dividends when and as declared by the Board of Directors at
such rate per share per annum, cumulatively if so provided, and with such
preferences, as shall have been fixed by the Board of Directors, before
any dividends shall be paid upon or declared and set apart for the Common
Stock or any other class of stock ranking junior to the Preferred Stock,
and such dividends on each series of the Preferred Stock shall cumulate,
if at all, from and after the dates fixed by the Board of Directors with
respect to such cumulation. Accrued dividends shall bear no interest.
(b) If dividends on the Preferred Stock are not declared
in full then dividends shall be declared ratably on all shares of stock
of each series of equal preference in proportion to the respective unpaid
cumulative dividends, if any, to the end of the then current dividend
period. No ratable distribution shall be declared or set apart for
payment with respect to any series until accumulated dividends in arrears
in full have been declared and paid on any series senior in preference.
(c) Unless dividends on all outstanding shares of series
of the Preferred Stock having cumulative dividend rights shall have been
fully paid for all past dividend periods, and unless all required sinking
fund payments, if any, shall have been made or provided for, no dividend
(except a dividend payable in Common Stock or in any other class of stock
ranking junior to the Preferred Stock) shall be paid upon or declared and
set apart for the Common Stock or any other class of stock ranking junior
to the Preferred Stock.
(d) Subject to the foregoing provisions, the Board of
Directors may declare and pay dividends on the Common Stock and on any
class of stock ranking junior to the Preferred Stock, to the extent
permitted by law. After full dividends for the current dividend period,
and, in the case of Preferred Stock having cumulative dividend rights
after all prior dividends have been paid or declared and set apart for
payment, the holders of the Common Stock shall be entitled, to the
exclusion of the holders of the Preferred Stock, to all further dividends
declared and paid in such current dividend period.
(5) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment
or distribution of the assets of the Corporation shall be made to or set
apart for the holders of shares of any class or classes of stock of the
Corporation ranking junior to the Preferred Stock, the holders of the
shares of each series of the Preferred Stock shall be entitled to receive
payment of the amount per share fixed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of the
shares of such series, plus an amount equal to all dividends accrued
thereon to the date of final distribution to such holders; but they shall
be entitled to no further payment. If, upon any liquidation, dissolution
or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of the shares of the
Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid, then such assets, or the proceeds thereof, shall be
distributed among such holders ratably in accordance with the respective
amount which would be payable on such shares if all amounts payable
thereon were paid in full. For the purposes of this paragraph B. (5),
the sale, conveyance, 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 or a consolidation or merger of the
Corporation with one or more corporations shall not be deemed to be a
dissolution, liquidation or winding up, voluntary or involuntary.
(6) Shares of any series of Preferred Stock which have been
issued and reacquired in any manner by the Company (excluding shares
purchased and retired, whether through the operation of a retirement or
sinking fund or otherwise, and shares which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock
of any other class or classes) shall have the status of authorized and
unissued shares of Preferred Stock and may be reissued as a part of the
series of which they were originally a part or may be reclassified and
reissued as part of a new series of Preferred Stock or as part of any
other series of Preferred Stock, all subject to the conditions or
restrictions on issuance fixed by the Board of Directors with respect to
the shares of any other series of Preferred Stock.
(7) Except as otherwise specifically provided herein or in the
authorizing resolutions, none of the shares of any series of Preferred
Stock shall be entitled to any voting rights and the Common Stock shall
have the exclusive right to vote for the election of directors and for
all other purposes. So long as any shares of any series of Preferred
Stock are outstanding, the Corporation shall not, without the consent of
the holders of a majority of the then outstanding shares of Preferred
Stock, irrespective of series, either expressed in writing (to the extent
permitted by law) or by their affirmative vote at a meeting called for
that purpose: (i) adopt any amendment to this Restated Certificate of
Incorporation or take any other action which in any material respect
adversely affects any preference, power, special right, or other term of
the Preferred Stock or the holders thereof, (ii) create or issue any
class of stock entitled to any preference over the Preferred Stock as to
the payment of dividends, or the distribution of capital assets, (iii)
increase the aggregate number of shares constituting the authorized
Preferred Stock or (iv) create or issue any other class of stock entitled
to any preference on a parity with the Preferred Stock as to the payment
of dividends or the distribution of capital assets.
(8) If in any case the amounts payable with respect to any
obligations to retire shares of the Preferred Stock are not paid in full
in the case of all series with respect to which such obligations exist,
the number of shares of each of such series to be retired pursuant to any
such obligations shall be in proportion to the respective amounts which
would be payable on account of such obligations if all amounts payable in
respect of such series were discharged in full.
(9) The shares of Preferred Stock may be issued by the
Corporation from time to time for such consideration as may be fixed from
time to time by the Board of Directors. Any and all shares for which the
consideration so fixed shall have been paid or delivered shall be deemed
fully paid and nonassessable.
(10) For the purpose of the provisions of this Article dealing
with Preferred Stock or of any resolution of the Board of Directors
providing for the issuance of any series of Preferred Stock or of any
certificate filed with the Secretary of State of the State of Delaware
pursuant to any such resolution (unless otherwise provided in any such
resolution or certificate):
(a) The term "outstanding", when used in reference to
shares of stock, shall mean issued shares, excluding shares held by the
Corporation and shares called for redemption, funds for the redemption of
which shall have been set aside or deposited in trust;
(b) The amount of dividends "accrued" on any share of
Preferred Stock as at any dividend date shall be deemed to be the amount
of any unpaid dividends accumulated thereon to and including such
dividend date, whether or not earned or declared, and the amount of
dividends "accrued" on any share of Preferred Stock as at any date other
than a dividend date shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the last preceding
dividend date, whether or not earned or declared, plus an amount
equivalent to interest on the involuntary liquidation value of such share
at the annual dividend rate fixed for the shares of such series for the
period after such last preceding dividend date to and including the date
as of which the calculation is made;
(c) The term "class or classes of stock of the corpora-
tion ranking junior to the Preferred Stock" shall mean the Common Stock
of the Corporation and any other class or classes of stock of the
Corporation hereafter authorized which shall rank junior to the Preferred
Stock as to dividends or upon liquidation.
C. PROVISIONS APPLICABLE TO ALL CAPITAL STOCK
No holder of any share or shares of any class of stock of the
Corporation shall have any preemptive or preferential right to subscribe
for or purchase any shares of stock of any class of the Corporation now
or hereafter authorized or any securities convertible into or carrying
any rights to purchase any shares of stock of any class of the
Corporation now or hereafter authorized, other than such rights, if any,
as the Board of Directors in its discretion from time to time may grant,
and at such prices and upon such other terms and conditions as the Board
of Directors in its discretion may fix.
D. SERIES OF PREFERRED STOCK
Following are the statements of the designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations and restrictions thereof, of the series of
Preferred Stock that have been designated by the Board of Directors as
authorized herein:
1. Series A Junior Participating Preferred Stock.
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors of this Corporation (hereinafter called the
"Board of Directors" or the "Board") in accordance with the provisions of
the Restated Certificate of Incorporation, the Board of Directors hereby
creates a series of Preferred Stock, without par value (the "Preferred
Stock"), of the Corporation and hereby states the designation and number
of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock"
(the "Series A Preferred Stock") and the number of shares constituting
the Series A Preferred Stock shall be 2,050,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock, without par value (the "Common Stock"), of the
Corporation, and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the
first day of March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Preferred Stock,
in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common
Stock since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series A Preferred
Stock. In the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been
declared on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $1 per share on the Series A Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares,
or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events
such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders of
Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event,
provided that in no event shall a share of Series A Preferred Stock be
entitled to more than one vote.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein)
for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A Preferred Stock and
all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares
of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A Preferred
Stock; or
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking on
a parity with the Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation in any
manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the Restated
Certificate of Incorporation, or in any other Certificate of Designations
creating a series of Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have received $100
per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an amount
per share, subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of shares
of Series A Preferred Stock shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of assets,
junior to all series of any other class of the Corporation's Preferred
Stock.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or special
rights of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a
single class.
2. Series D Preferred Stock.
FURTHER RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter called
the "Board of Directors" or the "Board") in accordance with the
provisions of the Restated Certificate of Incorporation, the Board of
Directors hereby creates a series of Preferred Stock, without par value
(the "Preferred Stock"), of the Corporation and hereby states the
designation and number of shares, and fixes the relative rights,
preferences and limitations thereof as follows:
Series D Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as Series D Preferred Stock (the "Series D Preferred
Stock") and the number of shares constituting the Series D Preferred
Stock shall be three hundred thousand (300,000). Shares of Series D
Preferred Stock shall have a stated value of $100 per share. Such number
may be increased or decreased by resolution of the Board of Directors;
provided, however that no decrease shall reduce the number of shares of
Series D Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants issued by or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series D Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any
series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series D Preferred Stock with respect to dividends, the
holders of shares of Series D Preferred Stock, in preference to the
holders of Common Stock and of any other Junior Stock (as hereinafter
defined in Section 4(B)), shall be entitled to receive a cash dividend
payable in an amount per share equal to $1.25 per quarter and no more
(such amount being referred to herein as the "Dividend Amount"), which
dividend shall be payable when and as declared by the Board of Directors,
out of funds legally available for the purpose, payable quarterly in
arrears on the first day of March, June, September and December in each
year (each such date being referred to herein as "Dividend Payment
Date"), subject to Section 2(B) below, commencing on the first Dividend
Payment Date after the first issuance of a share of Series D Preferred
Stock. In the event that any Dividend Payment Date shall occur on any
day other than a "Business Day" (as hereinafter defined), the dividend
payment due on such Dividend Payment Date shall be paid on the Business
Day immediately preceding such Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders of
shares of Series D Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof. For
purposes of these resolutions, "Business Day" shall mean each day that is
not a Saturday, Sunday or a date on which federally or state chartered
banking institutions in Chicago, Illinois or New York, New York are
required or authorized to be closed.
(B) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Preferred Stock from the date of issue of
such shares and shall accrue on a daily basis whether or not declared and
whether or not the Corporation shall have earnings or surplus out of
which such dividends could be paid at the time. Dividends accrued on the
shares of Series D Preferred Stock for any period less than a full
quarterly period between Dividend Payment Dates shall be computed on the
basis of a 360-day year of 30-day months and in lieu of the initial
quarterly dividend, such a proportional dividend shall accrue for the
period from the date of issue until the first Dividend Payment Date after
the issuance of any such shares. Accrued but unpaid dividends shall not
bear interest. Accumulated but unpaid dividends shall cumulate as of the
Dividend Payment Date on which they first become payable, but no interest
shall accrue on accumulated but unpaid dividends.
(C) Dividends paid on the shares of Series D Preferred Stock
in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
Section 3. Voting Rights. The holders of shares of Series D
Preferred Stock shall have the following voting rights:
(A) Each share of Series D Preferred Stock shall entitle the
holder thereof to one vote on all matters submitted to a vote of the
stockholders of the Corporation.
(B) Except as otherwise provided by law or in the Restated
Certificate of Incorporation, the holders of shares of Series D Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) Except as set forth herein, or as otherwise provided by
law or in the Restated Certificate of Incorporation, holders of Series D
Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote
with holders of Common stock as set forth herein) for taking any
corporate action. Any increase or decrease in the authorized class of
Preferred Stock shall not be deemed to alter or change the powers,
preferences, or special rights of the shares of Series D Preferred Stock
so as to affect them adversely within the meaning of the General
Corporation Law of the State of Delaware and no class vote shall be
required to authorize such increase or decrease.
Section 4. Certain Restrictions.
(A) So long as any Series D Preferred Stock shall be
outstanding, no dividend shall be declared and paid or set apart for
payment on any other series of stock ranking on a parity with the Series
D Preferred Stock as to dividends ("Parity Stock"), unless there shall
also be or have been declared and paid or set apart for payment on the
Series D Preferred Stock dividends for all dividend payment periods of
the Series D Preferred Stock ending on or before the dividend payment
date of such Parity Stock, ratably in proportion to the respective
amounts of dividends on the Series D Preferred Stock accumulated and
unpaid through the most recent such dividend payment period, and
accumulated and unpaid on such Parity Stock through the dividend payment
period on such Parity Stock ending on such dividend payment date or such
dividend payment date immediately preceding such dividend payment period.
(B) So long as any Series D Preferred Stock shall be
outstanding, in the event that full cumulative dividends on the Series D
Preferred Stock have not been declared and paid or set apart for payment,
the Corporation shall not declare and pay or set apart for payment any
dividends or make any other distributions on, or make any payment on
account of the purchase, redemption or other retirement of, Common Stock
or any other class of stock or series thereof of the Corporation ranking,
as to dividends or as to distributions in the event of a liquidation,
dissolution or winding up of the Corporation, junior to the Series D
Preferred Stock (collectively, "Junior Stock") until full cumulative and
unpaid dividends on the Series D Preferred Stock shall have been paid or
declared and set apart for payment; provided, however, that the foregoing
shall not apply to (i) any dividend payable solely in any shares of
Junior Stock, or (ii) the acquisition of shares of Junior Stock either
(x) pursuant to any employee or director incentive or benefit plan or
arrangement of the Corporation or any subsidiary of the Corporation
heretofore or hereafter adopted or (y) in exchange solely for shares of
any other Junior Stock. Subject to the foregoing provisions of this
Section 4, the Board of Directors may declare and the Corporation may pay
or set apart for payment dividends and other distributions on any Junior
Stock or Parity Stock; and may purchase or otherwise redeem or retire any
of the Junior Stock or Parity Stock or any warrants, rights, or options
or other securities exercisable for or convertible into any of the Junior
Stock or Parity Stock and the holders of shares of the Series D Preferred
Stock shall not be entitled to share therein.
Section 5. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (i) to the holders of shares
of Junior Stock unless, prior thereto, the holders of shares of Series D
Preferred Stock shall have received $100 per share (such amount being
referred to herein as the "Liquidation Preference"), plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, as to the date of such payment, or (ii) to the holders of
shares of Parity Stock, except distributions made ratably on the Series D
Preferred Stock and all such Parity Stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. After payment of the full amount
to which they are entitled as provided by the foregoing provisions of
this Section 5(A), the holders of shares of Series D Preferred Stock
shall not be entitled to any further right or claim to any of the
remaining assets of the Corporation.
(B) Neither the merger or consolidation of the Corporation
with or into any other corporation or other entity, nor the merger or
consolidation of any other corporation or other entity with or into the
Corporation, nor the sale, transfer or lease of all or any portion of the
assets of the Corporation, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this Section
5.
(C) Written notice of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, stating the
payment date or dates when, and the place or places where, the amounts
distributable to holders of Series D Preferred Stock in such
circumstances shall be payable, shall be made in accordance with Section
8 below not less than 20 days prior to any payment date stated therein,
to the holders of Series D Preferred Stock, at their respective addresses
shown on the books of the Corporation or any transfer agent for the
Series D Preferred Stock; provided, however, that a failure to give
notice as provided herein or any defect therein shall not affect the
Corporation's ability to consummate a voluntary or involuntary
liquidation, dissolution or winding up of the Corporation.
Section 6. Redemption.
All of the outstanding Series D Preferred Stock shall be
redeemed, by the Corporation, out of funds legally available therefor, on
the later of (i) February 1, 1997 and (ii) the death of Maurice J.
Sullivan, an individual residing in the State of Hawaii, to whom the
initial shares of Series D Preferred Stock will initially be issued (the
"Redemption Date"). The shares shall be redeemed at a price of $100 per
share, plus an amount equal to accrued and unpaid dividends thereon, to
the Redemption Date (the "Redemption Price"). On or subsequent to the
Redemption Date, upon surrender of the certificates for any shares to be
redeemed pursuant to the provisions of this Section 6, the Redemption
Price of such shares shall be paid in cash. In the event that the
Redemption Price is either paid or made available for payment, then,
notwithstanding that the certificate or certificates evidencing any of
the shares of the Series D Preferred Stock shall not have been
surrendered, all rights with respect to such shares shall terminate,
effective on the Redemption Date, and any such certificate shall
represent only the right to receive the Redemption Price, without
interest, upon surrender. No interest shall accrue on the Redemption
Price after the Redemption Date.
Section 7. Reacquired Shares. Any shares of Series D
Preferred Stock acquired by the Corporation by reason of the redemption
of such shares as provided hereby, or otherwise so acquired, shall be
retired and the Corporation shall take all actions necessary to restore
such shares to the status of authorized but unissued shares of Preferred
Stock, without par value, of the Corporation, which shares may thereafter
be reissued as part of a new series of such Preferred Stock or as Series
D Preferred Stock, as permitted by law.
Section 8. Miscellaneous.
(A) All notices referred to herein shall be in writing, and
delivered personally, sent by courier, or by registered or certified mail
(postage prepaid, return receipt requested) addressed: (i) if to the
Corporation, to its office at McDonald's Plaza, Oak Brook, Illinois 60521
(Attention: Secretary) or to the transfer agent designated by the
Corporation or (ii) if to any holder of the Series D Preferred Stock, to
such holder at the address of such holder as listed in the stock records
books of the Corporation (which may include the records of any transfer
agent for the Series D Preferred Stock or Common Stock, as the case may
be) or (iii) to such other address as the Corporation or any such holder,
as the case may be, shall have designated by notice similarly given.
(B) The Corporation shall pay any and all stock transfer and
documentary stamp taxes that may be payable in respect of any issuance or
delivery or shares of Series D Preferred Stock or certificates
representing such shares. The Corporation shall not, however, be
required to pay any such tax which may be payable in respect of any
transfer involved in the issuance or delivery of shares of Series D
Preferred Stock in a name other than the name in which the shares of
Series D Preferred Stock with respect to which such shares are issued or
delivered were registered, or in respect of any payment to any person
with respect to any such shares other than a payment to the registered
holder thereof, and shall not be required to make any such issuance,
delivery or payment unless and until the person otherwise entitled to
such issuance, delivery or payment 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 or is not payable.
(C) Unless otherwise provided in the Certificate of
Designations as the same may be amended, all payments in the form of
dividends, distributions on voluntary or involuntary dissolution,
liquidation or winding-up otherwise made upon the shares of Series D
Preferred Stock and any other stock ranking on a parity with the Series D
Preferred Stock with respect to such dividend or distribution shall be
made pro rata, so that amounts paid per share on the Series D Preferred
Stock and such other stock shall in all cases bear to each other the same
ratio that the required dividends, distributions or payments, as the case
may be, then payable per share on the shares of the Series D Preferred
Stock and such other stock bear to each other.
(D) The Corporation may appoint and from time to time
discharge and change, a transfer agent for the Series D Preferred Stock.
Upon any such appointment or discharge of a transfer agent, the
Corporation shall send notice thereof in accordance with Section 8(A) to
each holder of record of Series D Preferred Stock.
FIFTH: The minimum amount of capital with which the
Corporation will commence business is One Thousand Dollars ($1,000).
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The private property of the stockholders of the
Corporation shall not be subject to the payment of corporate debts to any
extent whatsoever.
EIGHTH: In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware the Board of Directors is
expressly authorized and empowered:
(a) In the manner provided in the by-laws of the Corporation
to make, alter, amend and repeal the by-laws of the Corporation in any
respect not inconsistent with the laws of the State of Delaware or with
the Restated Certificate of Incorporation of the Corporation;
(b) By a resolution or resolutions passed by a majority of the
whole Board, to designate one or more committees, each committee to
consist of two or more of the directors of the Corporation which, to the
extent provided in said resolution or resolutions or in the by-laws of
the Corporation, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the Corporation
to be affixed to all papers which may require it. Such committee or
committees shall have such name or names as may be stated in the by-laws
of the Corporation or as may be determined from time to time by
resolution adopted by the Board of Directors;
(c) Subject to any applicable provisions of the by-laws of the
Corporation then in effect, to determine from time to time, whether and
to what extent and at what times and places and under what conditions and
regulations the accounts and books of the Corporation, or any of them,
shall be open to the inspection of the stockholders; and no stockholder
shall have any right to inspect any account or book or document of the
Corporation, except as conferred by the laws of the State of Delaware,
unless and until authorized so to do by resolution of the Board of
Directors or of the stockholders of the Corporation;
(d) To fix from time to time the amount of the surplus or
profits of the Corporation to be reserved as working capital or for any
other lawful purpose;
(e) Without any action by the stockholders, to authorize the
borrowing of moneys for any of the purposes of the Corporation and, from
time to time without limit as to amount, to authorize and cause the
making, execution, issuance, sale or other disposition of promissory
notes, drafts, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and the securing of the same
by mortgage, pledge, deed of trust or otherwise.
In addition to the powers and authorities hereinbefore or by
statute expressly conferred upon it, the Board of Directors may exercise
all such powers and do all such acts and things as may be exercised, or
done by the Corporation, subject, nevertheless, to the provisions of the
laws of the State of Delaware, this Restated Certificate of Incorporation
and the by-laws of the Corporation.
Any contract, transaction or act of the Corporation or of the
directors or of any committee, which shall be ratified by the holders of
a majority of the shares of stock of the Corporation present in person or
by proxy and voting at any annual meeting, or at any special meeting
called for such purpose, shall, insofar as permitted by law or by this
Restated Certificate of Incorporation, be as valid and as binding as
though ratified by every stockholder of the Corporation.
The Corporation may enter into contracts or transact business
with one or more of its directors, or with any firm of which one or more
of its directors are members or with any trust, firm, corporation or
association in which any one or more of its directors is a stockholder,
director or officer or otherwise interested, and any such contract or
transaction shall not be invalidated in the absence of fraud because such
director or directors have or may have interests therein which are or
might be adverse to the interest of the Corporation, even though the
presence and/or vote of the director or directors having such adverse
interest shall have been necessary to constitute a quorum and/or to
obligate the Corporation upon such contract or transaction, provided that
such interests shall have been disclosed to the other directors and a
majority of the directors voting shall have approved such contract or
transaction; and no director having such adverse interest shall be liable
to this Corporation or to any stockholder or creditor thereof, or to any
other person for any loss incurred by it under or by reason of any such
contract or transaction; nor shall any such director or directors be
accountable for any gains or profits realized thereon.
The Corporation shall have power to indemnify any and all of
its directors or officers or former directors or officers or any person
who may have served at its request as a director or officer of another
corporation in which it owns shares of capital stock or of which it is a
creditor against liabilities and expenses actually and necessarily
incurred by them in connection with the defense of any action, suit or
proceeding in which they, or any of them, are made parties, or a party,
by reason of being or having been directors or officers or a director or
officer of the Corporation, or of such other corporation, except in
relation to matters as to which any such director or officer or former
director or officer or person shall be adjudged in such action, suit or
proceeding to be liable for negligence or misconduct in the performance
of duty. Such indemnification shall not be deemed exclusive of any other
rights to which those indemnified may be entitled, under any by-law,
agreement, vote of stockholders or otherwise.
NINTH: Meetings of stockholders may be held outside the State
of Delaware, if the by-laws so provide. The books of the Corporation may
be kept (subject to the laws of the State of Delaware) outside the State
of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the by-laws of the Corporation.
Elections of directors need not be by ballot unless the by-laws of the
Corporation shall so provide.
TENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Restated Certificate of
Incorporation, to the extent and in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein
are granted subject to this reservation.
ELEVENTH: It is hereby declared to be a proper corporate
purpose, reasonably calculated to benefit stockholders, for the Board of
Directors to base the response of the Corporation to any 'Acquisition
Proposal' on the Board of Directors' evaluation of what is in the best
interests of the Corporation and for the Board of Directors, in
evaluating what is in the best interests of the Corporation, to consider:
(i) the best interest of the stockholders; for this purpose
the Board shall consider, among other factors, not only the consideration
being offered in the Acquisition Proposal, in relation to the then
current market price, but also in relation to the then current value of
the Corporation in a freely negotiated transaction and in relation to the
Board of Directors' then estimate of the future value of the Corporation
as an independent entity; and<PAGE>
(ii) such other factors as the Board of Directors determines to
be relevant, including, among other factors, the social, legal and
economic effects upon franchisees, employees, suppliers, customers and
business.
"Acquisition Proposal" means any proposal of any person (a) for
a tender offer or exchange offer for any equity security of the
Corporation, (b) to merge or consolidate the Corporation with another
corporation, or (c) to purchase or otherwise acquire all or substantially
all of the properties and assets of the Corporation.
TWELFTH: Subject to all other applicable provisions of this
Restated Certificate of Incorporation and to all applicable provisions of
the law of Delaware, relating, inter alia, to stockholder approval, the
Board of Directors shall have the power to merge or consolidate the
Corporation with another corporation or to sell, lease or exchange all or
substantially all of the property and assets of the Corporation,
including its good will and its corporate franchises, upon such terms and
conditions and for such consideration, which may be in whole or in part
shares of stock in, and/or other securities of, any corporation or
corporations, as the Board of Directors shall deem expedient and for the
best interests of the Corporation, but, regardless of any other provision
of this Restated Certificate of Incorporation, if any party to any such
transaction shall be a person or entity owning, immediately prior to the
consummation of such transaction, of record or beneficially, 2% or more
of the stock of the Corporation issued and outstanding having voting
power, such power of the Board of Directors shall be exercisable only
when and as duly authorized by the affirmative vote of the holders of not
less than 66-2/3% of the stock of the Corporation issued and outstanding
having voting power given at a stockholders' meeting duly called for that
purpose; provided, however, that the Board of Directors shall have the
power to merge the Corporation with another corporation without action by
the stockholders to the extent and in the manner permitted from time to
time by the law of Delaware. In determining whether or not any person or
entity (the 'Primary Holder') owns, of record or beneficially, 2% or more
of the stock of the Corporation issued and outstanding having voting
power, there shall be aggregated with all shares of such stock owned of
record or beneficially by the Primary Holder (a) all shares of such stock
owned of record or beneficially by any person or entity who or which
would be deemed to be controlling, controlled by or under common control
with the Primary Holder under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, any federal statute enacted
to take the place of either or both such statutes or any regulation
promulgated under either of such statutes or such successor statutes (an
'Affiliate') and (b) all shares of such stock owned of record or
beneficially by any person or entity acting in concert with the Primary
Holder and/or with an Affiliate of the Primary Holder. This Article
Twelfth shall not be altered, amended or repealed except by the
affirmative vote of the holders of not less than 66-2/3% of the stock of
the Corporation issued and outstanding having voting power, given at a
stockholders' meeting duly called for that purpose, upon a proposal
adopted by the Board of Directors.
THIRTEENTH: Board of Directors.
(a) Number, Election and Terms. The business and affairs of
the Corporation shall be managed by or under the direction of a Board of
Directors consisting of not less than 11 nor more than 24 persons. The
exact number of directors within the minimum and maximum limitations
specified in the preceding sentence shall be fixed from time to time by
the Board of Directors pursuant to a resolution adopted by a majority of
the entire Board of Directors.
At the 1983 Annual Meeting of Stockholders, the directors shall
be divided into three classes, as nearly equal in number as possible,
with the term of office of the first class to expire at the 1984 annual
meeting of stockholders, the term of office of the second class to expire
at the 1985 annual meeting of stockholders and the term of office of the
third class to expire at the 1986 annual meeting of stockholders.
At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those whose
terms then expire shall be elected for a term of office expiring at the
third succeeding annual meeting of stockholders after their election.
(b) Newly Created Directorships and Vacancies. Subject to the
rights of the holders of any series of Preferred Stock then outstanding,
newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the directors
then in office. Directors so chosen shall hold office for a term expiring
at the annual meeting of stockholders at which the term of the class to
which they have been elected expires. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of
any incumbent director.
(c) Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire
Board of Directors, may be removed from office at any time, but only for
cause and only by the affirmative votes of the holders of at least 80% of
the voting power of all the shares of the Corporation entitled to vote
for the election of directors.
(d) Amendment, Repeal, Etc. Notwithstanding anything to the
contrary contained in this Restated Certificate of Incorporation, the
affirmative vote of the holders of at least 80% of the voting power of
all of the shares of the Corporation entitled to vote for the election of
directors shall be required to amend, alter or repeal, or to adopt any
provision inconsistent with, this Article Thirteenth.
FOURTEENTH: Stockholder Action. Any action required or
permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in writing by such
stockholders. Special meetings of stockholders of the Corporation may be
called upon not less than 10 nor more than 60 days' written notice only
by the Board of Directors pursuant to a resolution approved by a majority
of the Board of Directors. Notwithstanding anything contained in this
Restated Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 80% of the voting power of all of the
shares of the Corporation entitled to vote for the election of directors
shall be required to amend, alter or repeal, or to adopt any provision
inconsistent with, this Article Fourteenth.
FIFTEENTH: Elimination of Certain Liability of Directors. To
the fullest extent that the general corporate law of the State of
Delaware, as it exists on the date hereof or as it may hereafter be
amended, permits the limitation or elimination of the liability of
directors, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. No amendment to or repeal of this Article
Fifteenth shall apply to or have any effect on liability or alleged
liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment or
repeal.
IN WITNESS WHEREOF, this Restated Certificate of Incorporation,
which restates and integrates but does not further amend the Restated
Certificate of Incorporation of McDonald's Corporation, as heretofore
amended or supplemented, there being no discrepancy between such Restated
Certificate of Incorporation, as so amended and supplemented, and the
provisions hereof, and having been adopted in accordance with Section 245
of the Delaware General Corporation Law, has been executed by its
Vice President and attested by its Assistant Secretary, as of this
19th day of December, 1997.
McDONALD'S CORPORATION
By: /s/ Gloria Santona
------------------------
Vice President
ATTEST:
/s/ Joseph R. Thomas
-----------------------
Assistant Secretary
EXHIBIT 3(ii)
BY-LAWS OF
McDONALD'S CORPORATION
ARTICLE I - OFFICES
Section 1 - Registered Office - The registered office of McDonald's
Corporation shall be maintained at the office of the Corporation's
registered agent, in the City of Dover, in the County of New Castle, in
the State of Delaware. The Corporation's registered agent in Delaware is
The Prentice Hall Corporation System, Inc.
Section 2 - Other Offices - The Corporation may also have an office in
the Village of Oak Brook, State of Illinois, and may also have other
offices, either within or without the State of Delaware, at such place or
places as the Board of Directors may from time to time appoint or the
business of the Corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1- Place of Meetings - The Annual Meeting of Stockholders and any
other meetings of stockholders shall be held at such place as may from
time to time be determined by the Board of Directors and set forth in a
notice thereof.
Section 2 - Presiding Officer, Order of Business - The Chairman of the
Board, or in his or her absence, such officer as designated in Article IV
of these By-Laws, shall act as chairman of and preside at any meeting of
the stockholders. The chairman shall determine the order of business and
the procedure at the meeting, including the determination of the date and
time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at such meeting and such other
regulation of the manner of voting and the conduct of discussion as he or
she determines to be reasonably in order. The chairman may adjourn any
meeting of stockholders, whether pursuant to Section 5 of this Article II
or otherwise, and notice of such adjournment need be given only if
required by law.
Section 3 - Annual Election of Directors - The Annual Meeting of
Stockholders for the election of Directors and the transaction of other
business shall be held each year on the date determined by the Board of
Directors. If this date shall fall upon a legal holiday, the meeting
shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect Directors to
succeed those whose terms then expire and may transact any other proper
business. Any previously scheduled meeting of the stockholders may be
postponed by resolution of the Board of Directors upon public notice
given prior to the date previously scheduled for such meeting of
stockholders.
Section 4 - Voting - Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote (or such lesser
number of votes as may be provided with respect to holders of any series
of Preferred Stock in a resolution of the Board of Directors adopted
pursuant to the Certificate of Incorporation), in person or by proxy, for
each share of stock entitled to vote held by such stockholder but no
proxy shall be voted after three (3) years from its date unless such
proxy provides for a longer period. Any motion brought before a
stockholder meeting must be seconded before a vote will be taken. All
votes by stockholders on proposed amendments to the Certificate of
Incorporation and all elections of Directors, shall be by written ballot.
All elections for Directors shall be decided by a plurality of the votes
of the shares present at the meeting, in person or by proxy, and entitled
to vote on the election of directors; all other questions shall be
decided by majority vote of the shares entitled to vote on the subject
matter and present, in person or by proxy, at the meeting, except as
otherwise provided by the Certificate of Incorporation or the laws of the
State of Delaware; and where a separate vote by class is required, the
affirmative vote of the majority of shares of such class present in
person or represented by proxy at the meeting shall be the act of such
class.
Section 5 - Quorum - At all meetings of stockholders, except as otherwise
required by law, by the Certificate of Incorporation, or by these By-
Laws, a majority of the shares entitled to vote, whether present in
person or represented by proxy, shall constitute a quorum. Whether or
not there is such a quorum present at any meeting, the chairman of the
meeting or a majority of the shares so present or represented, shall have
power to adjourn the meeting from time to time. No notice of the time
and place of adjourned meetings need be given except as required by law.
At any such adjourned meeting at which the requisite amount of stock
entitled to vote shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed.
If the adjournment is for more than thirty (30) days or if after the
adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 6 - Special Meetings - Special meetings of the stockholders for
any purpose or purposes may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the Board of Directors
and shall be called by the Secretary in accordance with any such
resolution.
Section 7 - Notice of Meetings - Written or printed notice stating the
place, date, and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given by the Secretary to each
stockholder entitled to vote thereat at his address as it appears on the
records of the Corporation not less than ten (l0) nor more than sixty
(60) days before the date of the meeting. Business transacted at any
special meeting shall be confined to the purpose or purposes stated in
the notice of such special meeting.
Section 8 - No Action Without Meeting - Any action required or permitted
to be taken by the stockholders of the Corporation must be effected at a
duly called annual or special meeting of stockholders of the Corporation
and may not be effected by any consent in writing by such stockholders.
Section 9 - Nomination and Stockholder Business -
(A) Annual Meetings of Stockholders - (1) Nominations of persons
for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders at an annual
meeting of stockholders may be made (a) pursuant to the Corporation's
notice of meeting, (b) by or at the direction of the Board of Directors
or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this Section 9,
who is entitled to vote at the meeting and who complied with the notice
procedures set forth in this Section 9.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this Section 9, such business, as determined by the
Chairman of the meeting, must be a proper subject for stockholder action
under Delaware corporation law, and the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice shall be delivered to the Secretary at
the principal executive offices of the Corporation not less than sixty
(60) days nor more than ninety (90) days prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the
event that the date of the annual meeting is advanced by more than thirty
(30) days or delayed by more than sixty (60) days from such anniversary
date, notice by the stockholder to be timely must be so delivered not
earlier than the ninetieth (90th) day prior to such annual meeting and
not later than the close of business on the later of the sixtieth (60th)
day prior to such annual meeting or the tenth (10th) day following the
date on which public announcement of the date of such meeting is first
made. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected) and a
representation as to whether or not the stockholder intends to solicit
proxies in support of such proposed nominee; (b) as to any other business
that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting, any material
interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made, and a representation as to
whether or not the stockholder intends to solicit proxies in support of
such proposal; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is
made (i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and
number of shares of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 8 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement naming all
of the nominees for Directors or specifying the size of the increased
Board of Directors made by the Corporation at least seventy (70) days
prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 9 shall also be considered
timely, but only with respect to nominees for any new positions created
by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close
of business on the tenth (10th) day following the day on which such
public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders - Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting of stockholders pursuant to the Corporation's notice
of meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of
meeting (a) by or at the direction of the Board of Directors or (b) by
any stockholder of the Corporation who is a stockholder of record at the
time of giving of notice provided for in this Section 9, who shall be
entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 9. Nominations by stockholders of
such persons for election to the Board of Directors may be made at such a
special meeting of stockholders if the stockholder's notice required by
paragraph (A)(2) of this Section 9 shall be delivered to the Secretary at
the principal executive offices of the Corporation not earlier than the
ninetieth (90th) day prior to such special meeting and not later than the
close of business on the later of the sixtieth (60th) day prior to such
special meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such
meeting.
(C) General - (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 9 shall be
eligible to serve as directors and only such business shall be conducted
at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 9.
The Chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in this
Section 9 and, if any proposed nomination or business is not in
compliance with this Section 9 or if the stockholder solicits proxies in
support of such stockholder's proposed nomination or proposed business
without such stockholder having made the representation required by
paragraph (A)(2) of this Section 9, to declare that such defective
proposal shall be disregarded.
(2) For purposes of this Section 9, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(3) Notwithstanding the foregoing provisions of this Section
9, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 9. Nothing in this Section 9 shall
be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
ARTICLE III - DIRECTORS
Section 1 - Number and Term - The number of Directors who shall
constitute the whole Board of Directors shall be the number fixed from
time to time by the Board of Directors in accordance with the Certificate
of Incorporation and shall in no event be less than eleven (11) nor more
than twenty-four (24). At the 1983 Annual Meeting of Stockholders, the
Directors were divided into three (3) classes, as nearly equal in number
as possible with the term of office of the first class to expire at the
1984 Annual Meeting of Stockholders, the term of office of the second
class to expire at the 1985 Annual Meeting of Stockholders, and the term
of office of the third class to expire at the 1986 Annual Meeting of
Stockholders. At each Annual Meeting of Stockholders following such
initial classification and election, Directors elected to succeed those
whose terms then expire shall be elected for a term of office expiring at
the third succeeding Annual Meeting of Stockholders after their election
and until their successors shall be elected and shall qualify.
Section 2 - Resignations - Any Director or member of a committee of the
Board of Directors may resign at any time. Such resignation shall be
made in writing and shall take effect at the time specified therein and
if no time be specified, at the time of its receipt by the Secretary.
The acceptance of a resignation shall not be necessary to make it
effective.
Section 3 - Newly-Created Directorships and Vacancies - Subject to the
rights of the holders of any series of Preferred Stock then outstanding,
newly-created directorships resulting from any increase in the authorized
number of Directors or any vacancies in the Board of Directors resulting
from death, resignation, retirement, disqualification, removal from
office or other cause shall be filled by a majority vote of the Directors
then in office, though less than a quorum. Directors so chosen shall
hold office for a term expiring at the Annual Meeting of Stockholders at
which the term of the class to which they have been elected expires and
until their successors shall be elected and shall qualify. No decrease
in the number of Directors constituting the Board of Directors shall
shorten the term of any incumbent Director.
Section 4 - Removal - Subject to the rights of the holders of any series
of Preferred Stock then outstanding, any Director, or the entire Board of
Directors, may be removed from office at any time but only for cause and
only by the affirmative vote of the holders of eighty percent (80%) of
the voting power of all of the shares of the Corporation entitled to vote
for the election of Directors.
Section 5 - Powers - The Board of Directors shall exercise all of the
powers of the Corporation, except such as are by law or by the
Certificate of Incorporation of the Corporation or by these By-Laws
conferred upon or reserved to the stockholders.
Section 6 - Committees -
(A) Committees of the Board - The Board of Directors may, by
resolution or resolutions passed by a majority of Directors present at
any meeting at which there is a quorum, designate one or more other
committees, each committee to consist of two or more of the Directors of
the Corporation which, to the extent provided in said resolution or
resolutions or in these By-Laws shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of
the Corporation and may have power to authorize the seal of the
Corporation to be affixed to all papers which may require it.
(B) Limitation on Committee Authority - No committee shall have the
power or authority of the Board of Directors in reference to (i)
approving or adopting, or recommending to the stockholders, any action or
matter expressly required by the Delaware General Corporation Law to be
submitted to stockholders for approval; or (ii) adopting, amending or
repealing the By-Laws of the Corporation.
(C) Procedural Provisions - A majority of the members of a
committee shall constitute a quorum for the transaction of business, and
the act of a majority of such members present at any meeting at which
there is a quorum shall be the act of such committee. If at any meeting
of a committee there shall be less than a quorum present, a majority of
those members present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given other
than by announcement at the meeting which shall be so adjourned.
The Board of Directors may designate one or more Directors as alternate
members of any committee who may replace any absent or disqualified
member at any meeting of the committee. Such committee or committees
shall have such name or names as may be stated in these By-Laws or as may
be determined from time to time by resolution adopted by the Board of
Directors.
Each committee shall keep regular minutes of its proceedings and report
its acts and proceedings to the Board.
Section 7 - Meetings - The newly-elected Directors may hold their first
meeting for the purpose of organization and the transaction of business,
if a quorum be present, immediately after the Annual Meeting of the
Stockholders, or the time and place of such meeting may be fixed by
consent in writing of all the Directors. Commencing in 1984, the Board
of Directors may, without notice, hold its first meeting subsequent to
the election of a class of Directors for the purpose of organization and
the transaction of business, if a quorum be present, immediately after
the Annual Meeting of the Stockholders, or the time and place of such
meeting may be fixed by consent in writing of all the Directors.
Regular meetings of the Board of Directors may be held without notice at
such places, within or without the State of Delaware, and times as shall
be determined from time to time by resolution of the Directors.
Special meetings of the Board of Directors may be called by the Chairman
of the Board or the President and shall be called by the Secretary at the
direction of the Chairman of the Board or the President or on the written
request of any two (2) Directors on notice to each Director sent at least
twenty-four (24) hours prior to each such meeting. Notice of each such
meeting shall be delivered personally to each Director or sent by tele-
gram, telex, or electronic mail to such a place as designated from time
to time by each Director or, in the absence of any such designation, to
the Director's last known place of business or residence. Any such
meeting shall be held at such place or places, within or without the
State of Delaware, and times as may be determined by the Directors or as
shall be stated in the notice.
Section 8 - Quorum - A majority of the Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically
provided by the Certificate of Incorporation, the laws of the State of
Delaware, or these By-Laws. If at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained and
no further notice thereof need be given other than by announcement at the
meeting which shall be so adjourned.
Section 9 - Compensation - No employee of the Corporation shall receive
any additional compensation or remuneration for serving as a member of
the Board of Directors. By resolution of the Board of Directors, those
members of the Board of Directors who are not otherwise employed by the
Corporation may receive a fixed fee, payable quarterly, together with a
fee for attendance at each meeting. For purposes of this Section,
members of the Board of Directors who serve the Corporation in
capacities, such as outside consultants, attorneys, or business advisors,
shall not be considered by virtue of such service as being employed by
the Corporation. Nothing herein contained shall be construed to preclude
any Director from serving the Corporation in any other capacity as an
officer, agent, or otherwise and receiving compensation therefor.
Section 10 - Action Without Meeting - Unless otherwise restricted by the
Certificate of Incorporation or the By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof, may be taken without a meeting if all members of the
Board of Directors, or of such committee, as the case may be, consent
thereto in writing and such written consent is filed with the minutes of
proceedings of the Board of Directors or committee.
ARTICLE IV - OFFICERS
Section 1 - Designation - The officers of the Corporation shall be
elected by the Board of Directors and shall include, without limitation,
those officers as described in these By-Laws. The Board of Directors may
also elect such other officers as may be necessary or desirable for the
business of the Corporation or, by resolution, may authorize the Chief
Executive Officer to appoint other officers with such titles, powers and
duties as provided in the resolution. None of the officers, except the
Chief Executive Officer and Chairman of the Board need be Directors. One
person may hold more than one office at the same time provided the duties
of such officer may be properly and consistently performed by one person.
Section 2 - Salaries - The salaries of all officers of the Corporation
shall be fixed by or in a manner provided by the Board of Directors.
Section 3 - Term of Office - Each officer of the Corporation shall hold
his or her office until his or her successor is elected and qualified or
until his or her earlier resignation or removal. Any officer may resign
at any time upon written notice to the Corporation. Any officer elected
or appointed by the Board of Directors or the Chief Executive Officer may
be removed at any time by the affirmative vote of a majority of the Board
of Directors.
Section 4 - Senior Chairman - The Senior Chairman shall consult with the
Chairman of the Board, Chief Executive Officer, Chief Executive Officer -
McDonald's U.S.A., and Chief Executive Officer - McDonald's International
on the management of the Corporation and shall assist and cooperate with
the other officers of the Corporation in carrying out all orders,
resolutions, duties, and policies adopted or established by the Board of
Directors of the Corporation. In the event of the inability of the
Chairman to act, the Senior Chairman shall preside at all meetings of the
stockholders of the Corporation and of the Board of Directors of the
Corporation.
Section 5 - Chairman of the Board - The Chairman of the Board shall
preside at all meetings of the stockholders of the Corporation and of the
Board of Directors; he or she shall see that all orders, resolutions, and
policies adopted or established by the Board of Directors are carried
into effect; and he or she shall do and perform such other duties as from
time to time may be assigned by the Board of Directors.
Section 6 - Chief Executive Officer - The Chief Executive Officer shall
have responsibility for the general and active management of the business
of the Corporation and shall do and perform such other duties as from
time to time may be assigned to the Chief Executive Officer by the Board
of Directors.
Section 7 - Chief Executive Officer - McDonald's U.S.A. - The Chief
Executive Officer - McDonald's U.S.A. shall report to the Chief Executive
Officer; he or she shall oversee the direction of United States
operations and shall be responsible for the implementation of orders,
resolutions and policies adopted or established by the Board of Directors
and Chief Executive Officer; and he or she shall do and perform such
other duties as from time to time may be assigned by the Board of
Directors or the Chief Executive Officer.
Section 8 - Chief Executive Officer - McDonald's International - The
Chief Executive Officer - International shall report to the Chief
Executive Officer; he or she shall direct international operations and
shall be responsible for the day-to-day activities of the Corporation in
international markets; and he or she shall do and perform such other
duties as from time to time may be assigned by the Board of Directors or
the Chief Executive Officer.
Section 9 - Treasurer - The Treasurer shall have custody of the Corporate
funds and securities and shall keep full and accurate account of receipts
and disbursements in books belonging to the Corporation. He or she shall
deposit all monies and other valuables in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors.
The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors or the Chief Executive Officer, taking
proper vouchers for such disbursements. He or she shall render to the
Chairman of the Board, Chief Executive Officer and the Board of
Directors, at the regular meetings of the Board of Directors, or whenever
they may request it, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
Section 10 - Secretary - The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and Directors and all other
notices required by law or by these By-Laws; and in the case of his or
her absence or Inability or failure so to do, any such notice may be
given by any person thereunto directed by the Chairman of the Board or by
the Board of Directors or stockholders upon whose requisition the meeting
is called as provided in these By-Laws. He or she shall record all the
proceedings of the meetings of the Corporation and of the Board of
Directors. He or she shall have custody of the seal of the Corporation
and shall have the authority to affix the same to all instruments
requiring it and to attest the same. The Board of Directors may appoint
one or more Assistant Secretaries who, in the order determined by the
Chief Executive Officer, shall, in the absence or disability of the
Secretary, perform the duties of the Secretary; and who shall have the
authority to affix the seal of the Corporation and to attest the same.
The Board of Directors may also give general authority to any other
officer to affix the seal of the Corporation and to attest the same.
ARTICLE V - INDEMNIFICATION AND INSURANCE
Section 1 - Right to Indemnification -
(A) Indemnified Persons - Each person who was or is made a party or
is threatened to be made a party to or is involved in or called as a
witness in any Proceeding because he or she is an Indemnified Person,
shall be indemnified and held harmless by the Corporation to the fullest
extent permitted under the Delaware General Corporation Law (the "DGCL"),
as the same now exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than the DGCL
permitted the Corporation to provide prior to such amendment). Such
indemnification shall cover all expenses incurred by an Indemnified
Person (including, but not limited to, attorneys' fees and other expenses
of litigation) and all liabilities and losses (including, but not limited
to, judgments, fines, ERISA or other excise taxes or penalties and
amounts paid or to be paid in settlement) incurred by such person in
connection therewith.
(B) Additional Indemnified Persons - (1) Each Additional
Indemnified Person who was or is made a party or is threatened to be made
a party to or is involved in or called as a witness in any Proceeding
(other than an action by or in the right of the Corporation) because he
or she is an Additional Indemnified Person shall be indemnified and held
harmless by the Corporation against expenses (including, but not limited
to, attorneys' fees and other expenses of litigation) and all liabilities
and losses (including, but not limited to, judgments, fines, ERISA or
other excise taxes or penalties and amounts paid or to be paid in
settlement) incurred by such person in connection therewith if such
Additional Indemnified Person acted in Good Faith. The termination of
any Proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent shall not of itself create a
presumption that an Additional Indemnified Person did not act in Good
Faith.
(2) Each Additional Indemnified Person who was or is made a
party or is threatened to be made a party to or is involved in or called
as a witness in any Proceeding brought by or in the right of the
Corporation to procure a judgment in its favor because he or she is an
Additional Indemnified Person shall be indemnified and held harmless by
the Corporation against expenses (including, but not limited to,
attorneys' fees and other expenses of litigation) incurred by such person
in connection therewith if such Additional Indemnified Person acted in
Good Faith, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of
such person's duty to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
Proceeding shall have been brought or is pending shall determine upon
application that despite the adjudication of liability but in view of all
the circumstances of the case, such Additional Indemnified Person is
fairly and reasonably entitled to indemnity for such expenses which such
Court of Chancery or such other court shall deem proper.
(3) Any indemnification under paragraphs (B)(1) or (B)(2) of
this Section 1 (unless ordered by a court) shall be made by the
Corporation unless it is determined that indemnification of the
Additional Indemnified Person is not proper in the circumstances because
such person has not met the applicable standard of conduct set forth in
either paragraph (B)(1) or (B)(2) of this Section 1. Such determination
shall be made: (a) by the Board of Directors of the Corporation by a
majority vote of a quorum consisting of Directors who are not parties to
such Proceeding, or (b) if such a quorum is not obtainable, or, even if
obtainable if a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion. Such determination shall
be made within one hundred twenty (120) days (or such longer period
established as set forth in the next sentence) after receipt by the Board
of Directors of written notice from the Additional Indemnified Person
seeking indemnification setting forth in reasonable detail the facts
known to such person concerning the Proceeding. The period during which
the Board of Directors may determine that indemnification is not proper
may be extended to a period established by the Board of Directors by
written notice to the Additional Indemnified Person delivered to such
person within one hundred twenty (120) days after receipt by the Board of
Directors of such person's written notice seeking indemnification.
(C) Denial of Authorization for Certain Proceedings -
Notwithstanding anything to the contrary in this Article V, except with
respect to indemnification of Indemnified Persons specified in Section 3
of this Article V, the Corporation shall indemnify an Indemnified Person
or Additional Indemnified Person in connection with a Proceeding (or part
thereof) initiated by such person only if (i) authorization for such
Proceeding (or part thereof) was not denied by the Board of Directors of
the Corporation prior to the earlier of (x) sixty (60) days after receipt
of notice thereof from such Indemnified Person or one hundred twenty
(120) days after receipt of notice thereof from such Additional
Indemnified Person, as the case may be, or (y) a Change of Control, and
(ii) in the case of a Proceeding initiated by an Additional Indemnified
Person, it is not a Proceeding to enforce rights under this Article V.
(D) Certain Defined Terms - For purposes of this Article V, the
following terms shall have the following means (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
(i) a "Proceeding" is any investigation, action, suit or
proceeding, whether civil, criminal, administrative or
investigative, and any appeal therefrom;
(ii) an "Indemnified Person" is a person who is, was, or had
agreed to become (A) a Director of the Corporation
(including, in the case of such person seeking
indemnification while serving as a Director who is or
was an officer of the Corporation, such person in his
capacity as an officer) or (B) an officer, employee or
a Delegate, as defined herein, of the Corporation (but,
except as included within clause (A), with respect to
such officers, employees and Delegates and persons
agreeing to become officers, employees or Delegates
only as to Proceedings occurring after a Change of
Control, as defined herein, arising out of acts, events
or omissions occurring prior or subsequent to, or
simultaneously with, such Change of Control), or the
legal representative or any of the foregoing;
(iii) a "Delegate" is (A) any employee of the Corporation
serving as a director or officer (or in a substantially
similar capacity) of an entity or enterprise (x) in
which the Corporation owns a l0% or greater equity
interest or (y) the principal function of which is to
service or benefit the Corporation or its licensees;
(B) any employee of the Corporation serving as a
trustee or fiduciary of an employee benefit plan of the
Corporation or any entity or enterprise referred to in
clause (A); and (C) any employee serving at the request
of the Corporation in any capacity with any entity or
enterprise other than the Corporation;
(iv) a "Change of Control" shall be deemed to have occurred
if (A) any "Person" (as that term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended) is or becomes (except in a transaction
approved in advance by the Board of Directors of the
Corporation) the beneficial owner (as defined in Rule
13d-3 under such Act), directly or indirectly, of
securities of the Corporation representing 20% or more
of the combined voting power of the Corporation's then
outstanding securities, or (B) during any period of two
consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the
Corporation cease for any reason to constitute at least
a majority thereof unless the election of each Director
who was not a Director at the beginning of the period
was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at
the beginning of the period;
(v) an "Additional Indemnified Person" is a person who is,
was, or had agreed to become an officer, Delegate or
employee of the Corporation and who is not an Indemni-
fied Person; and
(vi) "Good Faith" shall mean with respect to any Additional
Indemnified Person that such person acted in good faith
and in a manner such person reasonably believed to be
in or not opposed to the best interests of the
Corporation, and, with respect to any criminal
Proceeding, such person had no reasonable cause to
believe such conduct was unlawful.
Section 2 - Expenses - Expenses, including attorneys' fees, incurred by a
person indemnified pursuant to Section 1 of this Article V in defending
or otherwise being involved in a Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding,
including any appeal therefrom, upon receipt of an undertaking (the
"Undertaking") by or on behalf of such person to repay such amount if it
shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation; provided, that (A) if a Change of Control
has occurred, such person shall be required to deliver to the Corporation
the Undertaking only if such an undertaking is required under the DGCL
then in effect, and (B) in connection with a Proceeding (or part thereof)
initiated by such person, except a Proceeding authorized by Section 3 of
this Article V, the Corporation shall pay said expenses in advance of
final disposition only if authorization for such Proceeding (or part
thereof) was not denied by the Board of Directors of the Corporation
prior to the earlier of (i) sixty (60) days in the case of an Indemnified
Person, or one hundred twenty (120) days in the case of an Additional
Indemnified Person, after receipt of a request for such advancement
accompanied by the Undertaking or (ii) a Change of Control. A person to
whom expenses are advanced pursuant hereto shall not be obligated to
repay pursuant to the Undertaking until the final determination of any
pending Proceeding in a court of competent jurisdiction concerning the
right of such person to be indemnified or the obligation of such person
to repay such expenses.
Section 3 - Protection of Rights - If a claim by an Indemnified Person
under Section 1 of this Article V is not promptly paid in full by the
Corporation after a written claim has been received by the Corporation or
if expenses pursuant to Section 2 of this Article V have not been
promptly advanced after a written request for such advancement by an
Indemnified Person (accompanied by the Undertaking if required by Section
2 of this Article V) has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim or the advancement of expenses. If
successful, in whole or in part, in such suit, such claimant shall also
be entitled to be paid the reasonable expense thereof. It shall be a
defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any Proceeding in advance of its
final disposition where the Undertaking has been tendered to the
Corporation (or, if a Change of Control has occurred, the Undertaking is
not required to be tendered to the Corporation under the DGCL) that
indemnification of the claimant is prohibited by law, but the burden of
proving such defense shall be on the Corporation. If a Change of Control
has occurred, a claimant making a claim under Section 1 of this Article V
or seeking to avoid repayment to the Corporation of expenses advanced
pursuant to Section 2 of this Article V shall have (i) the right, but not
the obligation, to have a determination made by independent legal
counsel, at the expense of the Corporation, as to whether indemnification
of the claimant is prohibited by law; and (ii) shall have the right (A)
to select as independent legal counsel to make such determination any
legal counsel designated for such purpose in a resolution adopted by the
Board of Directors that is in full force and effect immediately prior to
the Change of Control or (B), if the Board of Directors has failed to
designate any such legal counsel or all such counsel refuse to make such
a determination, to request the American Arbitration Association, at the
expense of the Corporation, to select an independent legal counsel
familiar with matters of the type in dispute to make such a
determination. If a determination has been made in accordance with the
preceding sentence, no determination inconsistent therewith by other
legal counsel, by the Board of Directors, or by stockholders shall be of
any force or effect. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders)
to have made a determination, if required, prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders)
that indemnification of the claimant is prohibited, shall be a defense to
the action or create a presumption that indemnification of the claimant
is prohibited.
Section 4 - Miscellaneous -
(A) Non-Exclusivity of Rights - The rights conferred on any person
by this Article V shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, By-Law, agreement, vote of stockholders or
disinterested Directors or otherwise. The Board of Directors shall have
the authority, by resolution, to provide for such indemnification of
agents of the Corporation or others and for such other indemnification of
Directors, officers, Delegates or employees, of the Corporation as it
shall deem appropriate.
(B) Insurance, contracts, and funding - The Corporation may
maintain insurance, at its expense, to protect itself and any Director,
officer, Delegate, employee, or agent of, the Corporation against any
expenses, liabilities or losses, whether or not the Corporation would
have the power to indemnify such person against such expenses,
liabilities or losses under the DGCL. The Corporation hereby agrees
that, for a period of six (6) years after any Change of Control, it shall
cause to be maintained policies of directors' and officers' liability
insurance providing coverage at least comparable to and in the same
amounts as that provided by any such policies in effect immediately prior
to such Change of Control. The Corporation may enter into contracts with
any Director, officer, Delegate or employee of the Corporation in
furtherance of the provisions of this Article V and may create a trust
fund, grant a security interest or use other means (including, without
limitation, a letter of credit) to ensure the payment of such amounts as
may be necessary to effect the advancing of expenses and indemnification
as provided in this Article V.
(C) Contractual nature - The provisions of this Article V as
amended effective December 17, 1990 shall be applicable with respect to
events, acts and omissions occurring prior to or subsequent to such
Amendment, and shall continue as to a person who has ceased to be a
Director, officer, Delegate or employee and shall inure to the benefit of
the heirs, executors and administrators of such person. This Article V
shall be deemed to be a contract between the Corporation and each person
who, at any time that this Article V as so amended is in effect, serves
or agrees to serve in any capacity which entitles him to indemnification
hereunder and any repeal or other modification of this Article V or any
repeal or modification of the DGCL or any other applicable law shall not
limit any rights of indemnification for Proceedings then existing or
arising out of events, acts or omissions occurring prior to such repeal
or modification, including, without limitation, the right to
indemnification for Proceedings commenced after such repeal or
modification to enforce this Article V with regard to Proceedings arising
out of acts, omissions or events arising prior to such repeal or
modification.
(D) Cooperation - Each Indemnified Person and Additional
Indemnified Person shall cooperate with the person, persons or entity
making the determination with respect to such Indemnified Person's or
Additional Indemnified Person's entitlement to indemnification under this
Article V, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to such Indemnified Person or Additional Indemnified Person and
reasonably necessary to such determination. Any costs or expenses
(including attorneys' fees and disbursements) incurred by such
Indemnified Person or Additional Indemnified Person in so cooperating
with the person, persons or entity making such determination shall be
borne by the Corporation (irrespective of the determination as to such
Indemnified Person's or Additional Indemnified Person's entitlement to
indemnification) and the Corporation hereby indemnifies and agrees to
hold such Indemnified Person or Additional Indemnified Person harmless
therefrom.
(E) Subrogation - In the event of any payment under this Article V
to an Indemnified Person or Additional Indemnified Person, the
Corporation shall be subrogated to the extent of such payment to all of
the rights of recovery of such Indemnified Person or Additional
Indemnified Person, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such
documents as are necessary to enable the Corporation to bring suit to
enforce such rights.
(F) Severability - If this Article V, or any portion hereof shall
be invalidated or held to be unenforceable on any ground by any court of
competent jurisdiction, the decision of which shall not have been
reversed on appeal, this Article V shall be deemed to be modified to the
minimum extent necessary to avoid a violation of law and, as so modified,
this Article V and the remaining provisions hereof shall remain valid and
enforceable in accordance with their terms to the fullest extent
permitted by law.
ARTICLE VI - MISCELLANEOUS
Section 1 - Certificates of Stock - Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the
name of the Corporation by the Senior Chairman of the Board or the
Chairman of the Board, Chief Executive Officer or a President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation, certifying the number of
shares owned by him in the Corporation. If such certificate is
countersigned (l) by a transfer agent or (2) by a registrar, any other
signature on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
Section 2 - Lost Certificates - A new certificate of stock may be issued
in the place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen, or destroyed; and the Directors may,
in their discretion, require the owner of the lost, stolen, or destroyed
certificate, or his legal representative, to give the Corporation a bond
in such sum as they may direct not exceeding double the value of the
stock to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft, or destruction of any
such certificate, or the issuance of any such new certificate.
Section 3 - Transfer of Shares - The shares of stock of the Corporation
shall be transferable upon its books by the holders thereof in person or
by their duly authorized attorneys or legal representatives by the
surrender of the old certificates duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, to the
Corporation by the delivery thereof to the person in charge of the stock
and transfer books and ledgers or to such other person as the Directors
may designate, by whom they shall be canceled; and new certificates shall
thereupon be issued. A record shall be made of each transfer and a
duplicate thereof mailed to the Delaware office; and whenever a transfer
shall be made for collateral security, and not absolutely, it shall be
expressed in the entry of the transfer.
Section 4 - Record Date - In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
Corporate action in writing without a meeting or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion,
or exchange of stock or for the purpose of any other lawful action, the
Board of Directors may fix, in advance, a record date which shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors and which shall not be more than sixty
(60) nor less than ten (l0) days before the date of such meeting nor more
than sixty (60) days prior to any other action.
Section 5 - Registered Stockholders - The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends and to vote as such owner and to
hold liable for calls and assessments a person registered on its books as
the owner of shares and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
Section 6 - Dividends - Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the
capital stock of the Corporation as and when they deem expedient.
Dividends may be paid in cash, in property, or in shares of the capital
stock of the Corporation; and in the case of a dividend paid in shares of
theretofore unissued capital stock of the Corporation, the Board of
Directors shall, by resolution, direct that there be designated as
capital in respect of such shares an amount not less than the aggregate
par value of such shares and, in the case of shares without par value,
such amount as shall be fixed by the Board of Directors. Before
declaring any dividend, there may be set apart out of any funds of the
Corporation available for dividends, such sum or sums as the Directors
from time to time in their discretion deem proper for working capital or
as a reserve fund to meet contingencies or for such other purposes as the
Directors shall deem conducive to the interests of the Corporation.
Section 7 - Seal - The Corporate seal shall be circular in form and shall
contain the name of the Corporation, the year of its creation, and the
words, "CORPORATE SEAL DELAWARE." Said seal may be used by causing it,
or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
Section 8 - Fiscal Year - The fiscal year of the Corporation shall begin
on the first day of January in each year and shall end on the last day of
December in each year.
Section 9 - Checks - All checks, drafts, or other orders for the payment
of money, notes, or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall be determined from
time to time by resolution of the Board of Directors.
Section 10 - Notice and Waiver of Notice - Whenever any notice is
required by these By-Laws to be given, personal notice is not meant
unless expressly so stated. If mailed, notice is given when deposited in
the United States mail, postage prepaid, directed to the stockholder at
his address as it appears on the records of the Corporation. If
delivered by facsimile, notice is given when verification that such
notice was sent is received by the sender. Stockholders not entitled to
vote shall not be entitled to receive notice of any meetings except as
otherwise provided by statute.
Whenever any notice whatever is required to be given under the provisions
of any law or under the provisions of the Certificate of Incorporation of
the Corporation or these By-Laws, a waiver thereof in writing signed by
the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed equivalent thereto.
Section 11 - Ratification by Stockholders - Any contract, transaction, or
act of the Corporation or of the Directors or of any committee which
shall be ratified by the holders of a majority of the shares of stock of
the Corporation present in person or by proxy and voting at any annual
meeting or at any special meeting called for such purpose, shall, insofar
as permitted by law or under the provisions of the Certificate of
Incorporation of the Corporation or these By-Laws, be as valid and
binding as though ratified by every stockholder of the Corporation.
Section 12 - Interested Directors - No contract or transaction between
the Corporation and one or more of its Directors or officers or between
the Corporation and any other corporation, partnership, association, or
other organization in which one or more of its Directors or officers are
directors or officers or have a financial interest, shall be void or
voidable solely for this reason or solely because the Director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction or solely
because his or her or their votes are counted for such purpose if:
(1) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are
known to the Board of Directors or the committee and the Board
or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are
known to the shareholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith
by vote of the shareholders; or
(3) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved, or ratified by the Board
of Directors, a committee thereof, or the shareholders.
Common or interested Directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE VII - AMENDMENTS
The By-Laws of this Corporation may be made, altered, amended, or
repealed by the affirmative vote of the holders of two-thirds of the
issued and outstanding shares entitled to vote at any annual or special
meeting of the stockholders, provided that notice of the proposed making,
alteration, amendment or repeal is included in the notice of the meeting
at which such action takes place.
The By-Laws of this Corporation may also be made, altered, amended, or
repealed by the affirmative vote of a two-thirds majority of the Board of
Directors at any regular or special meeting of the Board of Directors
provided that notice of the proposed making, alteration, amendment, or
repeal to be made is included in the notice of the meeting at the which
such action takes place. No By-Law shall be made, altered, amended, or
repealed so as to make such By-Law inconsistent with or violative of any
provision of the Certificate of Incorporation.
As amended through December 19, 1997.
EXHIBIT 4(a)
-----------------------------------------
SUPPLEMENTAL INDENTURE NO. 1
BETWEEN
McDONALD'S CORPORATION
AND
FIRST UNION NATIONAL BANK
Trustee
------------------------------
Dated as of January 8, 1998
------------------------------
SUPPLEMENTAL TO SENIOR DEBT SECURITIES INDENTURE
DATED AS OF OCTOBER 19, 1996
-----------------------------------------
McDONALD'S CORPORATION
SUPPLEMENTAL INDENTURE NO. 1
Dated as of January 8, 1998
Series of 6 3/8% Debentures due 2028
$150,000,000
Supplemental Indenture No. 1, dated as of January 8, 1998,
between McDONALD'S CORPORATION, a corporation organized and
existing under the laws of the State of Delaware (hereinafter
sometimes referred to as the "Company"), and FIRST UNION
NATIONAL BANK, a national banking association, authorized to
accept and execute trusts (hereinafter sometimes referred to as
the "Trustee").
W I T N E S S E T H :
WHEREAS, The Company and the Trustee have executed and
delivered a Senior Debt Securities Indenture dated as of October
19, 1996 (the "Indenture").
WHEREAS, Section 10.01 of the Indenture provides for the
Company, when authorized by the Board of Directors, and the
Trustee to enter into an indenture supplemental to the Indenture
to establish the form or terms of any series of Debt Securities
as permitted by Sections 2.01 and 2.02 of the Indenture.
WHEREAS, Sections 2.01 and 2.02 of the Indenture provide
for Debt Securities of any series to be established pursuant to
an indenture supplemental to the Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the series of Debt Securities provided for herein, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of such series of Debt Securities, as
follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS.
SECTION 1.01. This Supplemental Indenture No. 1
constitutes an integral part of the Indenture.
SECTION 1.02. For all purposes of this Supplemental
Indenture:
(1) Capitalized terms used herein without definition shall
have the meanings specified in the Indenture;
(2) All references herein to Articles and Sections, unless
otherwise specified, refer to the corresponding Articles and
Sections of this Supplemental Indenture No. 1; and
(3) The terms "hereof", "herein", "hereto", "hereunder"
and "herewith" refer to this Supplemental Indenture.
ARTICLE TWO
THE SERIES OF DEBT SECURITIES.
SECTION 2.01. There shall be a series of Debt Securities
designated the "6 3/8% Debentures due 2028" (the "Debentures").
The Debentures shall be limited to $150,000,000 aggregate
principal amount.
SECTION 2.02. The principal amount of the Debentures shall
be payable on January 8, 2028.
SECTION 2.03. The Debentures will be represented by a
global security (the "Global Security"). The Global Security
will be executed by the Company, authenticated by the Trustee
and deposited with, or on behalf of, The Depository Trust
Company (the "Depositary") and registered in the name of a
nominee of the Depositary. Except under circumstances described
below, the Debentures will not be issuable in definitive form.
Ownership of beneficial interests in the Global Security
will be limited to persons that have accounts with the
Depositary or its nominee ("participants") or persons that may
hold interests through participants. Ownership of a beneficial
interest in the Global Security will be shown on, and the
transfer of that beneficial interest will only be effected
through, records maintained by the Depositary or its nominee
(with respect to interests of participants) and on the records
of participants (with respect to interests of persons other than
participants).
So long as the Depositary or its nominee is the registered
owner of the Global Security, the Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of
the Debentures represented by the Global Security for all
purposes under the Indenture. Except as provided below, owners
of beneficial interests in the Global Security will not be
entitled to have Debentures represented by the Global Security
registered in their names, will not receive or be entitled to
receive physical delivery of Debentures in definitive form and
will not be considered the owners or Holders thereof under the
Indenture.
Principal and interest payments on Debentures represented
by the Global Security registered in the name of the Depositary
or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security.
If the Depositary notifies the Company that it is at any
time unwilling or unable to continue as Depositary or if at any
time the Depositary shall no longer be eligible to continue as
Depositary, the Company shall appoint a successor Depositary
with respect to the Debentures. If a successor Depositary for
the Debentures is not appointed by the Company within 90 days
from the date the Company receives such notice or becomes aware
of such ineligibility, the Company will execute, and the Trustee
will authenticate and deliver, Debentures in definitive form in
exchange for the entire Global Security. In addition, the
Company may at any time and in its sole discretion determine not
to have the Debentures represented by the Global Security and,
in such event, the Company will execute, and the Trustee will
authenticate and deliver, Debentures in definitive form in
exchange for the entire Global Security. In any such instance,
an owner of a beneficial interest in the Global Security will be
entitled to physical delivery in definitive form of Debentures
represented by the Global Security equal in principal amount to
such beneficial interest and to have such Debentures registered
in its name. Debentures so issued in definitive form will be
issued as registered Debentures in denominations of $1,000 and
integral multiples thereof, unless otherwise specified by the
Company.
Upon the exchange of a Global Security for individual
Debentures, such Global Security shall be cancelled by the
Trustee. Individual Debentures issued in exchange for a Global
Security shall be registered in such names and in such
authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Debentures to, or in accordance with
the instructions of the persons in whose name such Debentures
are so registered.
Unless and until it is exchanged in whole or in part for
the individual Debentures represented thereby, a Global Security
representing all or a portion of the Debentures may not be
transferred except as a whole by the Depositary for the
Debentures to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any such nominee to a
successor Depositary for the Debentures or a nominee of such
successor Depositary.
SECTION 2.04. The Debentures shall bear interest at the
rate of 6 3/8% per annum, payable semi-annually, in arrears, on
January 8 and July 8 of each year, commencing July 8, 1998
(each, an ``Interest Payment Date''). The Debentures shall be
dated the date of authentication and interest shall be payable
on the principal represented thereby from the later of January
8, 1998, or the most recent Interest Payment Date to which
interest has been paid or duly provided for. If any date on
which interest is payable is not a business day, the payment of
interest due on such date may be made on the next succeeding
business day (and without any interest or other payment in
respect of such delay).
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the
Holder in whose name any Debenture is registered in the Debt
Security register at the close of business on the January 1 or
July 1 (whether or not a business day) next preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest
payable on redemption or maturity will be payable to the person
to whom the principal is paid.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) and Clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures are
registered at the close of business on a Special Record Date (as
defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Debenture and the date of
the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this Section provided. Thereupon the Trustee shall fix a
Special Record Date ("Special Record Date") for the payment of
such Defaulted Interest which shall be not more than 15 nor less
than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefore to be mailed, first class postage prepaid, to each
Holder of Debentures at his address as it appears in the Debt
Security register, not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to be
published at least once in an authorized newspaper in each Place
of Payment, but such publication shall not be a condition
precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Debentures are registered on such Special
Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Supplemental Indenture No. 1 upon
transfer of or in exchange for or in lieu of any other Debenture
shall carry the rights to interest accrued but unpaid, and to
accrue, which were carried by such other Debenture.
SECTION 2.05. The Place of Payment for the Debentures
shall be both the City of New York, New York, and the City of
Charlotte, North Carolina. The Trustee shall be the paying
agent for the Debentures.
SECTION 2.06. The Debentures will be redeemable as a whole
or in part, at the option of the Company at any time (a "Company
Redemption Date"), at a redemption price equal to the greater of
(i) 100% of the principal amount of the Debentures to be redeemed
or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest thereon discounted to the
Company Redemption Date on the semi-annual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Rate
plus 10 basis points, plus, in either case, accrued and unpaid
interest on the principal amount being redeemed to the Company
Redemption Date.
"Treasury Rate" means, with respect to any Company
Redemption Date, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such Company Redemption Date.
"Comparable Treasury Issue" means the United States
Treasury security selected by an Independent Investment Banker as
having a maturity comparable to the remaining term of the
Debentures to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the Debentures. "Independent
Investment Banker" means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
Company Redemption Date, (i) the average of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) on the third business
day preceding such Company Redemption Date, as set forth in the
daily statistical release (or any successor release) published by
the Federal Reserve Bank of New York and designated ``Composite
3:30 p.m. Quotations for U.S. Government Securities'' or (ii) if
such release (or any successor release) is not published or does
not contain such prices on such business day, (A) the average of
the Reference Treasury Dealer Quotations for such Company
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference
Treasury Dealer Quotations'' means, with respect to each
Reference Treasury Dealer and any Company Redemption Date, the
average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Company Redemption Date.
"Reference Treasury Dealer" means Merrill Lynch, Pierce,
Fenner & Smith Incorporated and any additional reference dealers
appointed by the Company at the sole discretion of the Company,
and their respective successors; provided, however, that if any
of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute therefor another Primary
Treasury Dealer.
Notice of any redemption by the Company will be mailed at
least 30 days but not more than 60 days before any Company
Redemption Date to each holder of Debentures to be redeemed.
Unless the Company defaults in payment of the redemption
price, on and after any Company Redemption Date interest will
cease to accrue on the Debentures or portions thereof called for
redemption.
SECTION 2.07. The Debentures may be issued in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.08. The Debentures shall be in the form attached
as Exhibit A hereto.
ARTICLE THREE
MISCELLANEOUS.
SECTION 3.01. The recitals of fact herein and in the
Debentures shall be taken as statements of the Company and shall
not be construed as made by the Trustee.
SECTION 3.02. This Supplemental Indenture No. 1 shall be
construed in connection with and as a part of the Indenture.
SECTION 3.03. (a) If any provision of this Supplemental
Indenture No. 1 limits, qualifies, or conflicts with another
provision of the Indenture required to be included in indentures
qualified under the Trust Indenture Act of 1939 (as in effect on
the date of this Supplemental Indenture No. 1) by any of the
provisions of Sections 310 to 317, inclusive, of said Trust
Indenture Act, such required provisions shall control.
(b) In case any one or more of the provisions contained in
this Supplemental Indenture No. 1 or in the Debentures issued
hereunder should be invalid, illegal, or unenforceable in any
respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in
any way be affected, impaired, prejudiced or disturbed thereby.
SECTION 3.04. Whenever in this Supplemental Indenture No.
1 either of the parties hereto is named or referred to, this
shall be deemed to include the successors or assigns of such
party, and all the covenants and agreements in this Supplemental
Indenture No. 1 contained by or on behalf of the Company or by
or on behalf of the Trustee shall bind and inure to the benefit
of the respective successors and assigns of such parties,
whether so expressed or not.
SECTION 3.05. (a) This Supplemental Indenture No. 1 may
be simultaneously executed in several counterparts, and all said
counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
(b) The descriptive headings of the several Articles of
this Supplemental Indenture No. 1 were formulated, used and
inserted in this Supplemental Indenture No. 1 for convenience
only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, McDONALD'S CORPORATION has caused this
Supplemental Indenture No. 1 to be signed, acknowledged and
delivered by its President, Executive Vice President and Chief
Financial Officer or Senior Vice President and Treasurer and its
corporate seal to be affixed hereunto and the same to be
attested by its Secretary or Assistant Secretary, and FIRST
UNION NATIONAL BANK, as Trustee, has caused this Supplemental
Indenture No. 1 to be signed, acknowledged and delivered by one
of its Vice Presidents, and its seal to be affixed hereunto and
the same to be attested by one of its Authorized Officers, all
as of the day and year first written above.
McDONALD'S CORPORATION
[CORPORATE SEAL]
By: /s/ Carleton D. Pearl
--------------------------
Senior Vice President and
Treasurer
Attest:
/s/ Gloria Santona
______________________________
Secretary
FIRST UNION NATIONAL BANK, as Trustee
[CORPORATE SEAL]
By: /s/ John H. Clapham
-------------------------
Vice President
Attest:
/s/ Terence C. McPoyle
______________________________
Authorized Officer
STATE OF ILLINOIS
SS:
COUNTY OF DuPAGE
On the 8th day of January, in the year one thousand nine
hundred ninety eight, before me appeared Carleton D. Pearl to me
personally known, who being by me duly sworn, did say that he
resides at McDonald's Corporation, that he is Senior Vice
President and Treasurer of McDONALD'S CORPORATION, one of the
corporations described in and which executed the above
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it
was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
/s/ Leona J. Oostman
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Notary Public
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF PHILADELPHIA
On the 8th day of January, in the year one thousand nine
hundred ninety eight, before me appeared John H. Clapham to me
personally known, who, being by me duly sworn, did say that he
resides at Berwyn, Pennsylvania, that he is Vice President of
FIRST UNION NATIONAL BANK, one of the corporations described
in and which executed the above instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument
is such corporate seal, that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
/s/ Joann Fantini
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Notary Public
THIS DEBENTURE IS A REGISTERED GLOBAL DEBENTURE AND IS REGISTERED IN THE
NAME OF CEDE & CO., AS NOMINEE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"). UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, TO ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN. UNLESS AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN DEFINITIVE
REGISTERED FORM, THIS REGISTERED GLOBAL DEBENTURE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC, OR BY A NOMINEE OF DTC TO
DTC OR ANOTHER NOMINEE OF DTC, OR BY DTC OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED McDonald's Corporation REGISTERED
Number 6 3/8% DEBENTURE DUE JANUARY 8, 2028
RU $150,000,000
SEE REVERSE FOR
CERTAIN DEFINITIONS CUSIP 580 135 BY6
McDonald's Corporation, a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the ``Company,''
which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
Cede & Co. or registered assigns, the principal sum of One Hundred Fifty
Million Dollars ($150,000,000) on January 8, 2028 and to pay interest
thereon to the Registered Holder hereof from January 8, 1998, or from the
most recent interest payment date to which interest has been paid or duly
provided for, semiannually on January 8 and July 8, in each year,
commencing July 8, 1998 at the rate of 6 3/8% per annum until the
principal hereof is paid or such payment is duly provided for. The
interest so payable, and punctually paid or duly provided for, on any
interest payment date will, as provided in said Indenture, be paid to the
Person in whose name this Debenture is registered at the close of
business on the record date for such interest, which shall be the January
1 or July 1 (whether or not a Business Day) next preceding an interest
payment date. Payment of the principal of and interest on this Debenture
will be made at the designated office or agency of the Company maintained
for such purpose in the City of New York, New York and the City of
Philadelphia, Pennsylvania, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of
public and private debts or, at the option of the Company, interest so
payable may be paid by check to the order of said Holder mailed to his
address appearing on the Debt Security Register. Any interest not so
punctually paid or duly provided for shall be payable as provided in the
Indenture.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth in this place.
Unless the Certificate of Authentication hereon has been executed by
the Trustee referred to on the reverse hereof (or by an Authenticating
Agent, as provided in the Indenture) by manual signature, this Debenture
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, McDonald's Corporation has caused this Instrument to
be signed in its corporate name by the Chairman of the Board or its
President or one of its Vice Presidents manually or in facsimile and a
facsimile of its corporate seal to be imprinted hereon and attested by
the manual or facsimile signature of its Secretary or one of its
Assistant Secretaries.
Dated: January 8, 1998
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated herein
provided for in the withinmentioned Indenture.
FIRST UNION NATIONAL BANK
as Trustee
By:
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Authorized Officer
Attest:
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Secretary
McDONALD'S CORPORATION
By:
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Senior Vice President and Treasurer
McDONALD'S CORPORATION
6 3/8% DEBENTURE DUE JANUARY 8, 2028
This Debenture is one of a duly authorized issue of debentures,
notes or other evidences of indebtedness of the Company (herein called
"Debt Securities") of a series hereinafter specified, all issued and to
be issued under an Indenture dated as of October 19, 1996 (herein called
the "Indenture"), between the Company and First Union National Bank, as
Trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights thereunder of the Company, the Trustee and the Holders
of the Debt Securities and the terms upon which the Debt Securities are,
and are to be, authenticated and delivered. The Debt Securities may be
issued in one or more series, which different series may be issued in
various currencies, may be issued in various aggregate principal amounts,
may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if any), may
be subject to different covenants and Events of Default and may otherwise
vary as in the Indenture provided. This Debenture is one of a series of
Debt Securities of the Company designated as its 6 3/8% Debentures due
January 8, 2028 (herein called the "Debentures"), limited in aggregate
principal amount to $150,000,000.
In the case where any interest payment date or the maturity date
does not fall on a Business Day, payment of interest or principal
otherwise payable on such day need not be made on such day, but may be
made on the next succeeding Business Day with the same force and effect
as if made on the interest payment date or the maturity date, as the case
may be, and no interest shall accrue for the period from and after such
interest payment date or the maturity date.
The Debentures will be redeemable as a whole or in part, at the
option of the Company at any time (a ``Company Redemption Date''), at a
redemption price equal to the greater of (i) 100% of the principal amount
of the Debentures to be redeemed or (ii) the sum of the present values of
the remaining scheduled payments of principal and interest thereon
discounted to the Company Redemption Date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 10 basis points, plus, in either case, accrued and unpaid interest
on the principal amount being redeemed to the Company Redemption Date.
``Treasury Rate '' means, with respect to any Company Redemption
Date, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such Company
Redemption Date.
``Comparable Treasury Issue '' means the United States Treasury
security selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Debentures to be
redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of
the Debentures. ``Independent Investment Banker '' means one of the
Reference Treasury Dealers appointed by the Trustee after consultation
with the Company.
``Comparable Treasury Price'' means, with respect to any Company
Redemption Date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third business day preceding such Company
Redemption Date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York and
designated ``Composite 3:30 p.m. Quotations for U.S. Government
Securities'' or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations for such Company
Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such
Quotations. ``Reference Treasury Dealer Quotations '' means, with respect
to each Reference Treasury Dealer and any Company Redemption Date, the
average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third business day preceding such
Company Redemption Date.
``Reference Treasury Dealer '' means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and any additional reference dealers
appointed by the Company at the sole discretion of the Company, and their
respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York
City (a ``Primary Treasury Dealer''), the Company will substitute
therefor another Primary Treasury Dealer.
Notice of any redemption by the Company will be mailed at least 30
days but not more than 60 days before any Company Redemption Date to each
holder of Debentures to be redeemed.
Unless the Company defaults in payment of the redemption price, on
and after any Company Redemption Date interest will cease to accrue on
the Debentures or portions thereof called for redemption.
If an Event of Default shall occur with respect to the Debentures,
the principal of the Debentures may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 66 2/3% in
aggregate principal amount of each series of the Debt Securities at the
time outstanding (as defined in the Indenture) to be affected (each
series voting as a class), evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture or of
any supplemental indenture or modifying in any manner the rights of the
Holders of the Debt Securities of all such series; provided, however,
that no such supplemental indenture shall, among other things, (i) extend
the fixed maturity of any Debt Security, or reduce the rate or extend the
time of payment of interest thereon, or reduce the principal amount or
premium if any, thereon, or make the principal thereof, or premium, if
any, or interest, if any, thereon payable in any coin or currency other
than that hereinabove provided, without the consent of the Holder of each
Debt Security so affected or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon
acceleration of maturity thereof, or (ii) reduce the aforesaid percentage
of Debt Securities the Holders of which are required to consent to any
such supplemental indenture, without the consent of the Holders of each
Debt Security so affected. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the
Debentures at the time Outstanding, as defined in the Indenture, on
behalf of the Holders of all the Debentures, to waive compliance by the
Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Debenture shall be conclusive and binding
upon such Holder and upon all future Holders of this Debenture and of any
Debenture issued upon the transfer hereof or in exchange therefor or in
lieu hereof whether or not notation of such consent or waiver is made
upon this Debenture or upon any Debenture issued upon the transfer hereof
or in exchange therefor or in lieu hereof.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Debenture at the times, places, and rate, and in the
coin and currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable on the Debt Security
Register of the Company, upon surrender of this Debenture for transfer at
the office or agent of the Company in the City of New York, New York, or
the City of Philadelphia, Pennsylvania, duly endorsed by or accompanied
by a written instrument of transfer in form satisfactory to the Company
and the Debt Security registrar, duly executed by the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new
Debentures, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees.
The Debentures are issuable only as registered Debentures without
coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is exchangeable for a like aggregate principal
amount of Debentures of different authorized denominations, as requested
by the Holder surrendering the same.
No service charge will be made for any such transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the
owner hereof for the purpose of receiving payment as herein provided and
for all other purposes whether or not this Debenture be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
No recourse shall be made for the payment of the principal of or the
interest on this Debenture or for any claim based hereon or otherwise in
any manner in respect hereof, or in respect of the Indenture, against any
incorporator, stockholder, officer or director, as such past, present or
future, of the Company or of any predecessor or successor corporation,
whether by virtue of any constitutional provision or statute or rule of
law, or by the enforcement of any assessment or penalty or in any other
manner, all such liability being expressly waived and released by the
acceptance hereof and as part of the consideration for the issue hereof.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The following abbreviations, when used in the inscription on the
face of this Instrument, 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
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(Cust) (Minor)
under Uniform Gifts to Minors
Act
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(State)
Additional abbreviations may also be used though not in the above list.
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FOR VALUE RECEIVED the undersigned hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
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the within Instrument of McDONALD'S CORPORATION and hereby does
irrevocably constitute and appoint
---------------------------------------------------------------- Attorney
to transfer the said Instrument on the books of the within-named Company,
with full power of substitution in the premises.
Dated:
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NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Instrument in every
particular, without alteration or enlargement or any change whatever.
