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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
APACHE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 41-0747868
(State of incorporation or organization) (I.R.S. Employer Identification No.)
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
$2.015 DEPOSITARY SHARES NEW YORK STOCK EXCHANGE
(EACH REPRESENTING A ONE FIFTIETH
INTEREST IN A SHARE OF
AUTOMATICALLY CONVERTIBLE EQUITY SECURITIES,
CONVERSION PREFERRED STOCK, SERIES C)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities Act registration statement file number to which this form relates:
NONE.
Securities to be registered pursuant to Section 12(g) of the Act: NONE.
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
A description of the securities registered hereunder comparable to that
required by Item 1 of Form 8-A is set forth under the captions "Description of
Capital Stock" and "Description of Depositary Shares" in the Prospectus
contained in the amendment, dated April 9, 1999, to the Registration Statement
on Form S-3 (No. 333-75633) filed with the Commission on April 2, 1999, as
supplemented under "Description of Conversion Preferred Stock" and "Description
of Depositary Shares" by the Prospectus Supplement for the $2.015 Depositary
Shares filed pursuant to Rule 424. Such Prospectus may be revised, supplemented,
modified or amended and is hereby incorporated by reference in answer to this
Item 1.
ITEM 2. EXHIBITS.
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Exhibit No. Description
----------- -----------
<S> <C>
1 Deposit Agreement between the Registrant and Norwest
Bank Minnesota, National Association, as Depositary,
including form of depositary receipt for $2.015
Depositary Share, each representing a one-fiftieth
interest in a share of Automatically Convertible
Equity Securities, Conversion Preferred Stock, Series
C.
2 Form of stock certificate for Automatically
Convertible Equity Securities, Conversion Preferred
Stock, Series C.
3 Certificate of Designations, Preferences and Rights
describing the rights and preferences of the
Registrant's Automatically Convertible Equity
Securities, Conversion Preferred Stock, Series C.
</TABLE>
2
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
APACHE CORPORATION
(REGISTRANT)
By: Z. S. Kobiashvili
-----------------------------------
Z. S. Kobiashvili
Vice President and General Counsel
Dated: May 13, 1999
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INDEX OF EXHIBITS
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<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
1 Deposit Agreement between the Registrant and Norwest
Bank Minnesota, National Association, as Depositary,
including form of depositary receipt for $2.015
Depositary Share, each representing a one-fiftieth
interest in a share of Automatically Convertible
Equity Securities, Conversion Preferred Stock,
Series C.
2 Form of stock certificate for Automatically
Convertible Equity Securities, Conversion Preferred
Stock, Series C.
3 Certificate of Designations, Preferences and Rights
describing the rights and preferences of the
Registrant's Automatically Convertible Equity
Securities, Conversion Preferred Stock, Series C.
</TABLE>
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EXHIBIT 1
APACHE CORPORATION
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS DEPOSITARY
AND
HOLDERS OF DEPOSITARY RECEIPTS
------------
DEPOSIT AGREEMENT
------------
DATED AS OF MAY 13, 1999
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TABLE OF CONTENTS
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Page
ARTICLE I.
DEFINITIONS
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"Automatic Conversion"...................................................................1
"Certificate of Designation".............................................................1
"Certificate of Incorporation"...........................................................1
"Common Stock"...........................................................................1
"Company"................................................................................1
"Corporate Office".......................................................................1
"Deposit Agreement"......................................................................2
"Depositary".............................................................................2
"Depositary Share".......................................................................2
"Depositary's Agent".....................................................................2
"Mandatory Conversion Date"..............................................................2
"Receipt"................................................................................2
"record holder" or "holder"..............................................................2
"Registrar"..............................................................................2
"Securities Act".........................................................................2
"Stock" .................................................................................2
ARTICLE II.
BOOK-ENTRY FORM; FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.1. Book Entry Form; Form and Transfer of Receipts............................3
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof...........................................................5
SECTION 2.3. Registration of Transfer of Receipts......................................6
SECTION 2.4. Combination and Split-ups of Receipts.....................................6
SECTION 2.5. Surrender of Receipts and Withdrawal of Stock.............................6
SECTION 2.6. Limitations on Execution and Delivery, Transfer, Split-up,
Combination and Surrender of Receipts and Withdrawal or
Deposit of Stock..........................................................7
SECTION 2.7. Lost Receipts, etc........................................................7
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts......................7
SECTION 2.9. Conversion of Stock into Common Stock.....................................8
SECTION 2.10. Interchangeability of Book-Entry Receipts and Receipts
in Physical, Certificated Form............................................9
SECTION 2.11. Automatic Conversion of Stock............................................10
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ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information........................11
SECTION 3.2. Payment of Taxes or Other Governmental Charges...........................11
SECTION 3.3. Withholding..............................................................12
SECTION 3.4. Representations and Warranties as to Stock...............................12
SECTION 3.5. Covenants and Warranties as to Common Stock..............................12
ARTICLE IV.
THE STOCK, NOTICES
SECTION 4.1. Cash Distributions.......................................................12
SECTION 4.2. Distributions Other Than Cash............................................12
SECTION 4.3. Subscription Rights, Preferences or Privileges...........................13
SECTION 4.4. Notice of Dividends, Fixing of Record Date for Holders of Receipts.......14
SECTION 4.5. Voting Rights............................................................14
SECTION 4.6. Changes Affecting Stock and Reclassifications, Recapitalizations, etc....14
SECTION 4.7. Reports..................................................................15
SECTION 4.8. Lists of Receipt Holders.................................................15
ARTICLE V.
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies, Transfer Books by the Depositary;
the Registrar............................................................15
SECTION 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company........................16
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company................................................16
SECTION 5.4. Resignation and Removal of the Depositary, Appointment of
Successor Depositary.....................................................18
SECTION 5.5. Corporate Notices and Reports............................................18
SECTION 5.6. Deposit of Stock by the Company..........................................19
SECTION 5.7. Indemnification by the Company...........................................19
SECTION 5.8. Fees, Charges and Expenses...............................................19
ARTICLE VI.
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment................................................................19
SECTION 6.2. Termination..............................................................20
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ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. Counterparts..................................................20
SECTION 7.2. Exclusive Benefits of Parties.................................21
SECTION 7.3. Invalidity of Provisions......................................21
SECTION 7.4. Notices.......................................................21
SECTION 7.5. Depositary's Agents...........................................21
SECTION 7.6. Holders of Receipts Are Parties...............................22
SECTION 7.7. Governing Law.................................................22
SECTION 7.8. Headings......................................................22
SIGNATURES...................................................................23
</TABLE>
EXHIBIT A
iii
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of May 13, 1999, among Apache Corporation,
a Delaware corporation, Norwest Bank Minnesota, National Association, as
Depositary, and all holders from time to time of Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter set forth in
this Deposit Agreement, for the deposit of shares of the Stock with the
Depositary, as agent for the beneficial owners of the Stock, for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form annexed as
Exhibit A to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises contained herein, it
is agreed by and among the parties hereto as follows:
ARTICLE I.
DEFINITIONS
The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
"Automatic Conversion" shall mean the conversion of Depositary Shares
into shares of Common Stock as described in Section 2.11 hereof.
"Certificate of Designation" shall mean the Certificate of
Designations, Preferences and Rights establishing and setting forth the rights,
preferences, privileges and limitations of the Stock, as filed with the
Secretary of State of the State of Delaware.
"Certificate of Incorporation" shall mean the Restated Certificate of
Incorporation, as amended and restated from time to time, of the Company.
"Common Stock" shall mean the Company's Common Stock, par value $1.25
per share.
"Company" shall mean Apache Corporation, a Delaware corporation, and
its successors.
"Corporate Office" shall mean the office of the Depositary in South St.
Paul, Minnesota, at which at any particular time its business in respect of
matters governed by this
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Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at 161 North Concord Exchange, South St. Paul, Minnesota
55075, Telephone: (651) 450-4064, Attention: Account Manager.
"Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
"Depositary" shall mean (i) Norwest Bank Minnesota, National
Association and any of its successors and assigns, as Depositary hereunder, and
(ii) any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by the Receipts
executed and delivered hereunder, including the interests in Stock granted to
holders of Receipts pursuant to the terms and conditions of the Deposit
Agreement. Each Depositary Share shall represent an interest in one-fiftieth
(1/50th) of one share of Stock deposited with the Depositary hereunder and the
same proportionate interest in any and all other property received by the
Depositary in respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each record holder of
a Receipt evidencing a Depositary Share or Shares is entitled, proportionately,
to all the rights, preferences and privileges of the Stock represented by such
Depositary Share or Shares, including the dividend, voting and liquidation
rights contained in the Certificate of Designation, and to the benefits of all
obligations and duties of the Company in respect of the Stock under the
Certificate of Designation and the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"Mandatory Conversion Date" shall mean May 15, 2002.
"Receipt" shall mean a Depositary Receipt executed and delivered
hereunder, in substantially the form of Exhibit A hereto, evidencing a
Depositary Share or Shares, as the same may be amended from time to time in
accordance with the provisions hereof.
"record holder" or "holder" as applied to a Receipt shall mean the
person in whose name a Receipt is registered on the books maintained by or on
behalf of the Depositary for such purpose.
"Registrar" shall mean any company appointed to register ownership and
transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's Automatically Convertible
Equity Securities, Conversion Preferred Stock, Series C, no par value per share.
2
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ARTICLE II.
BOOK-ENTRY FORM; FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS
SECTION 2.1. Book Entry Form; Form and Transfer of Receipts. The
Company and the Depositary shall make application to The Depository Trust
Company ("DTC") for acceptance of all or a portion of the Receipts for its
book-entry settlement system. The Company hereby appoints the Depositary acting
through any authorized officer thereof as its attorney-in-fact, with full power
to delegate, for purposes of executing any agreements, certifications or other
instruments or documents necessary or desirable in order to effect the
acceptance of such Receipts for DTC eligibility, including but not limited to,
the FAST Balance Certificate Agreement between the Depositary and DTC (the "FAST
Agreement"). So long as the Receipts are eligible for book-entry settlement with
DTC except as otherwise set forth herein, or unless otherwise required by law,
all Depositary Shares to be traded on the New York Stock Exchange with
book-entry Settlement through DTC shall be represented by a single receipt (the
"DTC Receipt") which shall be deposited with DTC (or its designee) evidencing
all such Depositary Shares and registered in the name of the nominee of DTC
(initially expected to be Cede & Co.). Norwest Bank Minnesota, National
Association and any of its successors and assigns or such other entity as is
agreed to by DTC may hold the DTC Receipt as custodian for DTC. During any
period in which any Depositary Shares are evidenced by the DTC Receipt except as
otherwise set forth herein, no person acquiring Depositary Shares traded on the
New York Stock Exchange with book-entry settlement through DTC shall receive or
be entitled to receive physical delivery of the Receipts evidencing such
Depositary Shares. Ownership of beneficial interests in the DTC Receipt shall be
shown on, and the transfer of such ownership shall be effected through, records
maintained by (i) DTC or its nominee for such DTC Receipt, or (ii) institutions
that have accounts with DTC.
If DTC subsequently ceases to make its book-entry settlement system
available for the Receipts, the Company may instruct the Depositary regarding
making other arrangements for book-entry settlement. In the event that the
Receipts are not eligible for, or it is no longer necessary to have the Receipts
available in book-entry form, the Depositary shall provide written instructions
to DTC to deliver to the Depositary for cancellation the DTC Receipt, and the
Company shall instruct the Depositary to deliver to the beneficial owners of the
Depositary Shares previously evidenced by the DTC Receipt definitive Receipts in
physical form evidencing such Depositary Shares. Such definitive Receipts shall
be in the form annexed hereto as Exhibit A with appropriate insertions,
modifications and omissions, as hereafter provided.
The beneficial owners of Depositary Shares shall, except as stated
above with respect to Depositary Shares in book-entry form represented by the
DTC Receipt, be entitled to receive Receipts in physical, certificated form as
herein provided.
The Receipts may be typewritten, in the case of the DTC Receipt, and
otherwise shall, upon notice by the Company to the Depositary, be definitive
Receipts which shall be engraved, printed or typewritten and shall be
substantially in the form set forth in Exhibit A annexed to this
3
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Deposit Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. The DTC Receipt shall bear such legend or legends as may
be required by DTC in order for it to accept the Depositary Shares for its
book-entry settlement system.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar (other than the Depositary) shall
have countersigned the Receipts by manual signature of a duly authorized officer
of the Registrar. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company delivered in accordance with
Section 2.2, shall execute and deliver temporary Receipts which shall be
printed, lithographed, typewritten, photocopied or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
appropriate insertions, omissions, substitutions and other variations as the
persons executing such Receipts may determine are necessary for such temporary
Receipts, as evidenced by their execution of such temporary Receipts. If
temporary Receipts are issued, the Company and the Depositary will cause
definitive Receipts to be prepared without unreasonable delay; provided that, if
such temporary Receipts are global Receipts, definitive Receipts need not be
prepared until the Receipts cease to be held in global form. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at the
Corporate Office or such other office as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Agreement, and with respect to the Stock, as definitive
Receipts.
No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed as provided in the preceding paragraph. The Depositary shall record on
its books each Receipt executed as provided above and delivered as hereinafter
provided. Receipts bearing the manual or facsimile signature of anyone who was
at any time a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of whole
Depositary Shares. All Receipts shall be dated the date of their execution.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Stock or the Depositary Shares may be listed
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the Stock or otherwise.
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Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer shall be transferable by delivery with the same effect as
in the case of investment securities in general; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
the Company or any holder of Stock may deposit such Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a properly executed instrument of transfer in form satisfactory
to the Depositary, together with (i) all such certifications as may be required
by the Depositary in accordance with the provisions of this Deposit Agreement
and (ii) a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the written order of
the person or persons stated in such order a Receipt or Receipts for the number
of Depositary Shares representing such deposited Stock.
Subject to the terms and conditions of this Deposit Agreement, Stock
may also be deposited hereunder in connection with the delivery of Receipts to
represent distributions under Section 4.2 and upon exercise of the rights to
subscribe referred to in Section 4.3.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary shall, as soon as transfer and registration can be
accomplished, present such certificate or certificates to the registrar and
transfer agent of the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited Stock shall be
held by the Depositary in an account to be established by the Depositary at the
Corporate Office.
Upon receipt by the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents specified
above, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.2, a Receipt or Receipts for the number of
whole Depositary Shares representing the Stock so deposited and registered in
such name or names as may be requested by such person or persons. The Depositary
shall execute and deliver such Receipt or Receipts at the Corporate Office,
except that, at the request, risk and expense of any person requesting such
delivery and for the account of such person, such delivery may be made at such
other place as may be designated by such person. In each case, delivery will be
made only upon payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such deposit and
the transfer of the deposited Stock.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
5
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SECTION 2.3. Registration of Transfer of Receipts. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof at the
Corporate Office, or such other office as the Depositary may designate for such
purpose, by the record holder in person or by a duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of transfer,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
SECTION 2.4. Combination and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office, or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered; provided, however, that
the Depositary shall not issue any Receipt evidencing a fractional Depositary
Share.
SECTION 2.5. Surrender of Receipts and Withdrawal of Stock.
(a) Except as provided in Section 2.5(b), no holder of a Receipt or
Receipts shall have the right to withdraw any of the shares of Stock represented
by such Receipts.
(b) Notwithstanding Section 2.5(a), the Company shall have the right to
withdraw any or all of the Stock (but only in whole shares of Stock) represented
by the Depositary Shares and all money and other property, if any, represented
by such Depositary Shares by surrendering the Receipt or Receipts evidencing
such Depositary Shares at the Corporate Office, or at such other office as the
Depositary may designate for such withdrawals (and cancellation of the
surrendered Receipts as provided in Section 2.8). After such surrender, without
unreasonable delay, the Depositary shall deliver to the Company the whole number
of shares of Stock and all such money and other property, if any, represented by
the Depositary Shares evidenced by the Receipt or Receipts so surrendered for
withdrawal. If the Receipt or Receipts delivered by the Company to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of whole Depositary Shares
representing the whole number of shares of Stock to be withdrawn, the Depositary
shall at the same time, in addition to such whole number of shares of Stock and
such money and other property, if any, to be withdrawn, deliver to the Company,
or (subject to Section 2.3) upon its order, a new Receipt or Receipts evidencing
such excess number of whole Depositary Shares.
Delivery of the Stock and such money and other property being withdrawn
may be made by the delivery of such certificates, documents of title and other
instruments as the Depositary may deem appropriate, which, if required by the
Depositary, shall be properly endorsed or accompanied by proper instruments of
transfer.
The Depositary shall deliver the Stock and the money and other
property, if any, represented by the Depositary Shares evidenced by Receipts
surrendered for withdrawal, without unreasonable delay, at the office at which
such Receipts were surrendered, except that, at the
6
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request, risk and expense of the Company such delivery may be made, without
unreasonable delay, at such other place as may be designated by the Company.
For purposes of determining the number of Depositary Shares outstanding
on any dividend payment date for purposes of Section 8 of the Certificate of
Designation, the Receipts representing Depositary Shares acquired by the Company
on or prior to such dividend payment date and not theretofore delivered to the
Depositary for withdrawal and cancellation shall be deemed to be outstanding.
SECTION 2.6. Limitations on Execution and Delivery, Transfer, Split-up,
Combination and Surrender of Receipts and Withdrawal or Deposit of Stock. As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, or surrender of any Receipt, the delivery of any
distribution thereon or deposit of Stock, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following: (i)
payment to it of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the reimbursement to it)
of any tax or other governmental charge with respect thereto (including any such
tax or charge with respect to the Stock being deposited or withdrawn); (ii)
production of proof satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such reasonable regulations, if any, as the
Depositary or the Company may establish not inconsistent with the provisions of
this Deposit Agreement.
The deposit of Stock may be refused, or the registration of transfer,
split-up, combination or surrender of outstanding Receipts and the withdrawal of
deposited Stock may be suspended (i) during any period when the register of
stockholders of the Company is closed, (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any provision of
this Deposit Agreement, or (iii) with the approval of the Company, for any other
reason. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any shares of Stock that are
required to be registered under the Securities Act unless a registration
statement under the Securities Act is in effect as to such shares of Stock.
SECTION 2.7. Lost Receipts, etc. In case any Receipt shall be mutilated
or destroyed or lost or stolen, the Depositary shall execute and deliver a
Receipt of like form and tenor in exchange and substitution for such mutilated
Receipt or in lieu of and in substitution for such destroyed, lost or stolen
Receipt unless the Depositary has notice that such Receipt has been acquired by
a bona fide purchaser; provided, however, that the holder thereof provides the
Depositary with (i) evidence satisfactory to the Depositary of such destruction,
loss or theft of such Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the Depositary or the
payment of any charges incurred by the Depositary in obtaining insurance in lieu
of such indemnification and (iii) payment of any expense (including fees,
charges and expenses of the Depositary) in connection with such execution and
delivery.
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary.
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Except as prohibited by applicable law or regulation, the Depositary shall, from
time to time, deliver such cancelled Receipts to the Company, who will retain
them in compliance with applicable regulations of the Securities and Exchange
Commission. Any Receipt evidenced in book-entry form shall be deemed cancelled
when the Depositary has caused the amount of Depositary Shares evidenced by the
DTC Receipt to be reduced in proportion to the number of Depositary Shares
evidenced by the surrendered Receipt.
SECTION 2.9. Conversion of Stock into Common Stock. Receipts may be
surrendered with written instructions to the Depositary to instruct the Company
to cause the conversion of any specified number of whole or fractional shares of
Stock represented by the Depositary Shares evidenced thereby into whole shares
of Common Stock at the conversion rate then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate of
Designation, as such conversion rate may be adjusted by the Company from time to
time as provided in the Certificate of Designation. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Designation, a
holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Stock may surrender such Receipt or Receipts at the
Corporate Office, or to such office as the Depositary may designate for such
purpose, or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion duly completed and executed,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Stock specified in
such notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company, to any transfer agent for Depositary Shares
or in blank, duly completed and executed. Each optional conversion of Depositary
Shares will be effective immediately prior to the close of business on the date
on which the holder satisfies the requirements set forth in the foregoing
sentence. To the extent that a holder delivers to the Depositary for conversion
a Receipt or Receipts which in the aggregate are convertible into less than one
whole share of Common Stock, the holder shall receive an amount in cash in lieu
of such fractional shares of Common Stock as provided in the Certificate of
Designation. If more than one Receipt shall be delivered for conversion at one
time by the same holder, the number of whole shares of Common Stock issuable
upon conversion thereof shall be computed on the basis of the aggregate number
of Receipts so delivered.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock and an assignment of such Receipt or Receipts to the
Company, to any transfer agent for the Depositary Shares or in blank, duly
completed and executed, the Depositary shall instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in payment of any accrued and unpaid dividends with respect to
such Depositary Shares and in lieu of fractional shares of Common Stock
otherwise issuable. The Company shall as promptly as practicable after receipt
thereof cause the delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been
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converted, and (ii) any money or other property to which the holder is entitled.
Upon such conversion, the Depositary (i) shall deliver to the holder a Receipt
evidencing the number of Depositary Shares, if any, which such holder has
elected not to convert and evidencing the number of Depositary Shares, if any,
in excess of the number of Depositary Shares representing Stock which has been
so converted, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion and (iii) shall deliver to the Company or its
transfer agent for the Stock for cancellation the shares of Stock represented by
the Depositary Shares evidenced by the Receipts so surrendered and so converted.
The record holder of Depositary Shares on any dividend payment record
date established by the Depositary pursuant to Section 4.4 shall be entitled to
receive the dividend payable with respect to such Depositary Shares on the
corresponding dividend payment date notwithstanding the subsequent conversion of
the shares of Stock to which such Depositary Shares relate. If a share of Stock
is converted between the record date with respect to any dividend payment on the
Stock and the next succeeding dividend payment date, any holder of Receipts
surrendered with instructions to the Depositary for conversion of the underlying
Stock shall pay to the Depositary an amount equal to the dividend payable on
such dividend payment date on the Depositary Shares represented by the Receipts
being surrendered for conversion. Any holder of Receipts on a dividend payment
record date who (or whose transferee) surrenders the Receipts with instructions
to the Depositary for conversion of the underlying Stock on the corresponding
dividend payment date will receive the dividend payable with respect to the
Depositary Shares underlying such Receipts and will not be required to include
payment of the amount of such dividend upon surrender of the Receipts for
conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein, any cash payable on
account of accrued dividends with respect to such Depositary Shares, and any
Receipts evidencing Depositary Shares not so converted) shall terminate, and the
Receipt evidencing such Depositary Shares shall be cancelled in accordance with
Section 2.8 hereof.
No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If any holder of Receipts surrendered
with instructions to the Depositary for conversion of the underlying Stock would
be entitled to a fractional share of Common Stock upon such conversion, the
Company shall cause to be delivered to such holder an amount in cash for such
fractional share as provided in the Certificate of Designation.
SECTION 2.10. Interchangeability of Book-Entry Receipts and Receipts in
Physical, Certificated Form. Subject to the terms and conditions of this Deposit
Agreement, upon receipt by the Depositary of written instructions from a DTC
participant on behalf of any person having a beneficial interest in Depositary
Shares evidenced by the DTC Receipt for the purpose of directing the Depositary
to execute and deliver a Receipt in physical, certificated form evidencing such
Depositary Shares, the Depositary shall follow the procedures set forth in the
FAST Agreement for the purpose of reducing the number of Depositary Shares
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evidenced by the DTC Receipt and, following such reduction, shall execute and
deliver to or upon the order of the person or persons named in such order a
Receipt or Receipts registered in the name or names requested by such person and
evidencing in the aggregate the number of Depositary Shares equal to the
reduction in the number evidenced by the DTC Receipt. The Depositary may require
in such written instructions any certification or representation as it shall
deem necessary to comply with applicable law.
Subject to the terms and conditions of this Deposit Agreement, upon
receipt by the Depositary of a Receipt or Receipts in physical, certificated
form, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Depositary, including any required certifications, and
together with written instructions directing the Depositary to adjust its
records to reflect an increase in the aggregate amount of Depositary Shares
evidenced by the DTC Receipt (including, without limitation, information
regarding the DTC participant account to be credited with such increase), and
upon payment of the fees and expenses of the Depositary, the Depositary shall
cancel such Receipt or Receipts in physical, certificated form and shall follow
the procedures set forth in the FAST Agreement for the purpose of reflecting
such increase in the number of Depositary Shares evidenced by the DTC Receipt.
SECTION 2.11. Automatic Conversion of Stock. On the Mandatory
Conversion Date, as provided in the Certificate of Designation, provided that
the Company shall then have delivered to the Depositary the shares of Common
Stock and the aggregate amount of cash required to pay any accrued and unpaid
dividends on the Depositary Shares and for fractional share interests issuable
and payable upon Automatic Conversion of the Stock then deposited with the
Depositary, the Depositary shall convert (using such shares of Common Stock and
cash so delivered to it) each holder's Depositary Shares into the proportionate
number of whole shares of Common Stock and the proportionate amount of such cash
to which such holder is thereby entitled.
The Depositary shall, as directed by the Company, mail, first class
postage prepaid, notice of such Automatic Conversion of Stock and the proposed
simultaneous Automatic Conversion of the Depositary Shares, not less than five
and not more than 15 days prior to the Mandatory Conversion Date. Such notice
shall be mailed to each holder at the address of such holder as the same appears
on the records of the Depositary at the close of business on the second business
day immediately preceding the date on which the mailing of such notices is
commenced; but neither failure to mail any such notice to one or more holders
nor any defect in any notice shall affect the sufficiency of the proceedings for
Automatic Conversion. The Company shall provide the Depositary with such notice,
and each such notice shall state: the Mandatory Conversion Date; that all
outstanding Depositary Shares on the Mandatory Conversion Date will be
automatically converted into shares of Common Stock and the conversion rate at
which such Automatic Conversion shall occur; the amount of accrued and unpaid
dividends, if any, payable with respect to each Depositary Share to be so
converted; the place or places where Receipts to be so converted are to be
surrendered for conversion; that dividends in respect of the Stock represented
by the Depositary Shares to be so converted shall cease to accrue as of the
Mandatory Conversion Date; and such additional information as the Company in its
discretion deems appropriate.
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From and after the Mandatory Conversion Date, the Depositary Shares
automatically converted into shares of Common Stock shall be deemed no longer to
be outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the shares of Common Stock and
any cash payable upon Automatic Conversion) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender, in accordance with the
notice specified in the preceding paragraph, of the Receipts evidencing such
Depositary Shares (properly endorsed or assigned for transfer, if the Depositary
shall so require), the holders of such Receipts shall receive for each such
Depositary Share a number of shares of Common Stock equal to one fiftieth
(1/50th) of the number of shares of Common Stock and of the cash for accrued and
unpaid dividends delivered in respect of each share of automatically converted
Stock. The foregoing shall be subject further to the terms and conditions of the
Certificate of Designation.
ARTICLE III.
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs, Certificates and Other Information. Any
person presenting Stock for deposit or any holder of a Receipt may be required
from time to time to file such proof of residence or other information, to
execute such certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt or
the registration of transfer of any Receipt, the withdrawal of the Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution until such proof or other
information is filed, such certificates are executed or such representations and
warranties are made.
SECTION 3.2. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) any Receipt, (ii) the Depositary Shares evidenced
by such Receipt, (iii) the Stock (or fractional interest therein) or other
property represented by such Depositary Shares, or (iv) any transaction referred
to in Section 4.6, such tax (including transfer, issuance or acquisition taxes,
if any) or governmental charge shall be payable by the holder of such Receipt,
who shall pay the amount thereof to the Depositary. Until such payment is made,
registration or transfer of any Receipt or any split-up or combination thereof
or any withdrawal of the Stock or money or other property, if any, represented
by the Depositary Shares evidenced by such Receipt may be refused, any dividend
or other distribution may be withheld and any part or all of the Stock or other
property represented by the Depositary Shares evidenced by such Receipt may be
sold for the account of the holder thereof (after attempting by reasonable means
to notify such holder prior to such sale). Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of such
tax or other governmental charge, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.3. Withholding. The Depositary shall act as the tax
withholding agent for any payments, distributions made with respect to the
Depositary Shares and Receipts, and the Stock. The Depositary shall be
responsible with respect to the Depositary Shares, Receipts
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and Stock for the timely (i) collection and deposit of any required withholding
or backup withholding tax, and (ii) filing of any information returns or other
documents with federal (and other applicable) taxing authorities.
SECTION 3.4. Representations and Warranties as to Stock. In the case of
the initial deposit of the Stock, the Company and, in the case of subsequent
deposits thereof, each person so depositing Stock under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such deposit is duly
authorized to do so. Such representations and warranties shall survive the
deposit of the Stock and the issuance of Receipts therefor.
SECTION 3.5. Covenants and Warranties as to Common Stock. The Company
covenants that it will keep reserved or otherwise available a sufficient number
of authorized and unissued shares of Common Stock or issued shares of Common
Stock held in its treasury, or both, to meet conversion requirements in respect
of the Stock and that it will give written notice to the Depositary of any
adjustments in the conversion price as set forth in the Certificate of
Designation. The Company represents and warrants that the Common Stock issued
upon conversion of Stock, when issued, will be validly issued, fully paid and
non-assessable. Such representation and warranty shall survive the conversion of
the Stock into such Common Stock.
ARTICLE IV.
THE STOCK, NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Section 3.2, distribute to record holders of Receipts on the record
date fixed pursuant to Section 4.4 such amounts of such sum as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.2. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash, rights, preferences or
privileges upon the Stock, the Depositary shall, subject to Section 3.2,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.4 such amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution. If, in the
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opinion of the Company after consultation with the Depositary, such distribution
cannot be made proportionately among such record holders, or if for any other
reason (including any tax withholding or securities law requirement), the
Depositary deems, after consultation with the Company, such distribution not to
be feasible, the Depositary may, with the approval of the Company which approval
shall not be unreasonably withheld, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to
record holders of Receipts as provided by Section 4.1 in the case of a
distribution received in cash.
SECTION 4.3. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible to
make such rights, preferences or privileges available to some or all holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, in each case, and if
applicable laws or the terms of such rights, preferences or privileges so
permit, sell such rights, preferences or privileges of such holders at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.1 in the
case of a distribution received in cash.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold such securities, the Company shall promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its reasonable best efforts to take such action or obtain such
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authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends, Fixing of Record Date for Holders of
Receipts. Whenever (i) any cash dividend or other cash distribution shall become
payable, or any distribution other than cash shall be made or any rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or (ii) the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Receipts (x) who shall be
entitled to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) who shall be entitled
to give instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record date fixed
pursuant to Section 4.4 will be entitled, subject to any applicable provision of
law, the Certificate of Incorporation or the Certificate of Designation, to
instruct the Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by such Receipt in accordance
with the instructions set forth in such request. The Company hereby agrees to
take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by such Receipt.
SECTION 4.6. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or sale
of all or substantially all the Company's assets affecting the Company or to
which it is a party, the Depositary may in its discretion with the approval of
the Company, and shall upon the specific instructions of the Company, (a) make
such adjustments in (i) the fraction of an interest represented by one
Depositary Share in one share of Stock and (ii) the ratio of the Optional
Conversion Rate and Exchange Rate per Depositary Share to the Optional
Conversion Rate and Exchange Rate of a share of Stock, in each case as may be
necessary fully to reflect the effects of such change in par or stated value,
split-up, combination or other reclassification of Stock, or of such
recapitalization, reorganization, merger, amalgamation, combination or sale and
(b) treat any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Stock as new deposited securities
under this Deposit Agreement, and Receipts then outstanding shall thenceforth
represent the new
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deposited securities so received in exchange for or upon conversion or in
respect of such Stock. In any such case, the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all outstanding Receipts to be exchanged or new
Receipts specifically describing such new deposited securities.
Anything to the contrary herein notwithstanding, holders of Receipts
shall have the right from and after the effective date of any such change in par
or stated value, split-up, combination or other reclassification of the Stock or
any such recapitalization, reorganization, merger, amalgamation, consolidation
or sale of substantially all the assets of the Company to surrender such
Receipts to the Depositary with instructions to convert, exchange or surrender
the Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of Stock and other securities and cash into which the Stock
evidenced by such Receipts might have been converted or for which such Stock
might have been exchanged or surrendered immediately prior to the effective date
of such transaction. The Company shall cause effective provision to be made in
the charter of the resulting or surviving corporation (if other than the
Company) for protection of such rights as may be applicable upon exchange of
such Stock for securities or property or cash of the surviving corporation in
connection with the transactions set forth above. The Company shall cause any
such surviving corporation (if other than the Company) expressly to assume the
obligations of the Company hereunder.
SECTION 4.7. Reports. The Company or, at the option of the Company, the
Depositary shall forward to the holders of Receipts any reports and
communications received from the Company that are received by the Depositary as
the holder of Stock.
SECTION 4.8. Lists of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
At the expense of the Company, the Company shall have the right to inspect
transfer and registration records of the Depositary, any Depositary's Agent or
the Registrar, take copies thereof and require the Depositary, any Depositary's
Agent or the Registrar to supply copies of such portions of such records as the
Company may request.
ARTICLE V.
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1. Maintenance of Offices, Agencies, Transfer Books by the
Depositary; the Registrar. Upon execution of this Deposit Agreement in
accordance with its terms, the Depositary shall maintain (i) at the Corporate
Office facilities for the execution and delivery, registration, registration of
transfer, surrender, split-up and combination of Receipts and deposit and
withdrawal of Stock and (ii) at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration, registration of transfer, surrender,
split-up and combination of Receipts and deposit and withdrawal of Stock, all in
accordance with the provisions of this Deposit Agreement.
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The Depositary, acting as transfer agent and Registrar, shall keep
books at the Corporate Office for the registration and transfer of Receipts,
which books at all reasonable times shall be open for inspection by the record
holders of Receipts; provided that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares. The Depositary shall consult with the Company upon receipt of any
request for inspection. The Depositary may close such books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on one or more stock
exchanges, the Depositary shall, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance with
the requirements of such exchange or exchanges. Such Registrar (which may be the
Depositary if so permitted by the requirements of such exchange or exchanges)
may be removed and a substitute registrar appointed by the Depositary upon the
request or with the approval of the Company. In addition, if the Receipts, such
Depositary Shares or such Stock are listed on one or more stock exchanges, the
Depositary will, at the request of the Company, arrange such facilities for the
delivery, registration, registration of transfer, surrender, split-up,
combination or redemption of such Receipts, such Depositary Shares or such Stock
as may be required by law or applicable stock exchange regulations.
SECTION 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor the Registrar nor the Company shall incur any
liability to any holder of any Receipt, if by reason of any provision of any
present or future law or regulation thereunder of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision, present or
future, of the Certificate of Incorporation or the Certificate of Designation
or, in the case of the Company, the Depositary, the Registrar or any
Depositary's Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any Depositary's
Agent, the Registrar or the Company shall be prevented or forbidden from doing
or performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of a Receipt (i)
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of this Deposit Agreement provide
shall or may be done or performed, or (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or the Registrar,
if any such exercise or failure to exercise discretion is caused by its gross
negligence or willful misconduct.
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the Receipts to holders
or other persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under this Deposit
Agreement or the Receipts to holders or other persons, except to perform such
obligations as are specifically set
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forth and undertaken by it to perform in this Deposit Agreement without gross
negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares or
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary, any Depositary's Agent, the Registrar and the Company may each
rely and shall each be protected in acting upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent may own and
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent
nor the Registrar shall be deemed to be an "issuer" of the Stock, the Depositary
Shares, or the Receipts or other securities issued upon exchange or conversion
of the Stock under the federal securities laws or applicable state securities
laws, it being expressly understood and agreed that the Depositary and any
Depositary's Agent and the Registrar are acting only in a ministerial capacity;
provided, however, that the Depositary agrees to comply with all information
reporting and withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent nor the Registrar makes any representation or
has any responsibility as to the validity of the registration statement pursuant
to which the Depositary Shares are registered under the Securities Act, the
Stock, the Depositary Shares or any instruments referred to therein or herein,
or as to the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its representations in this
Deposit Agreement.
The Depositary assumes no responsibility for the correctness of the
description that appears in the Receipts, which can be taken as a statement of
the Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, the Depositary
makes no warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary hereunder or
of the Depositary Shares, as to the validity or sufficiency of this Deposit
Agreement, as to the value of the Depositary Shares or as to any right, title or
interest of the record holders of Receipts in and to the Depositary Shares
except that the Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good standing
under the
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<PAGE> 22
laws of the State of Minnesota, with full power, authority and legal right under
such law to execute, deliver and carry out the terms of this Deposit Agreement;
(ii) this Deposit Agreement has been duly authorized, executed and delivered by
the Depositary; and (iii) this Deposit Agreement constitutes, and when executed
and delivered, each Receipt will constitute, a valid and binding obligation of
the Depositary, enforceable against the Depositary in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). The Depositary shall not be accountable for the use or
application by the Company of the Depositary Shares or the Receipts or the
proceeds thereof.
SECTION 5.4. Resignation and Removal of the Depositary, Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice via registered mail of its election to do so
delivered to the Company, such resignation to take effect upon the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
The Depositary may at any time be removed by the Company by written
notice of such removal delivered to the Depositary, such removal to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company, or an affiliate of a bank or trust
company, having its principal office in the United States of America and having
a combined capital and surplus of at least $50,000,000. If a successor
depositary shall not have been appointed in 60 days, the resigning or removed
Depositary may petition a court of competent jurisdiction to appoint a successor
depositary. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the Stock and any moneys or property held
hereunder to such successor and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.5. Corporate Notices and Reports. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to
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<PAGE> 23
the record holders of Receipts, in each case at the address recorded in the
Depositary's books, copies of all notices and reports (including financial
statements) required by law, by the rules of any national securities exchange
upon which the Stock, the Depositary Shares or the Receipts are listed or by the
Certificate of Incorporation and the Certificate of Designation to be furnished
by the Company to holders of Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such documents as the Depositary may reasonably request. In addition, the
Depositary will transmit to the record holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.6. Deposit of Stock by the Company. The Company agrees with
the Depositary that neither the Company nor any company controlled by the
Company will at any time deposit any Stock if such Stock is required to be
registered under the provisions of the Securities Act and no registration
statement is at such time in effect as to such Stock.
SECTION 5.7. Indemnification by the Company. The Company shall
indemnify the Depositary for, and hold it harmless against, any loss, liability,
claim or expense ("Loss") arising out of or in connection with its duties under
this Deposit Agreement, including the reasonable costs and expenses of defending
itself against Loss, unless such Loss shall have been determined by a court of
competent jurisdiction to be a result of the Depositary's gross negligence or
willful misconduct. Anything to the contrary notwithstanding, in no event shall
the Depositary be liable for special, indirect, consequential or incidental loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Depositary has been advised of the likelihood of such damages.
SECTION 5.8. Fees, Charges and Expenses. No fees, charges and expenses
of the Depositary or any Depositary's Agent hereunder or of any Registrar shall
be payable by any person other than the Company, except for any taxes and other
governmental charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees, charges or
expenses for which it is not otherwise liable hereunder, such holder or other
person will be liable for such fees, charges and expenses. All other fees,
charges and expenses of the Depositary and any Depositary's Agent hereunder and
of any Registrar (including, in each case, reasonable fees and expenses of
counsel) incident to the performance of their respective obligations hereunder
will be paid from time to time upon consultation and agreement between the
Depositary and the Company as to the amount and nature of such fees, charges and
expenses.
ARTICLE VI.
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the holders of Receipts shall
be effective as to outstanding Receipts until the expiration of 90 days after
notice of such amendment shall have been given to the record holders of
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<PAGE> 24
outstanding Receipts and unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares outstanding. In no event
shall any amendment impair the right, subject to the provisions of Sections 2.3,
2.5 and 2.6 and Article III, of any owner of any Depositary Shares to surrender
the Receipt evidencing such Depositary Shares with instructions to the
Depositary to deliver to the holder the Stock and all money and other property,
if any, represented thereby, except in order to comply with mandatory provisions
of applicable law.
SECTION 6.2. Termination. This Deposit Agreement may be terminated by
the Company or the Depositary only after (i) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Shares pursuant to Section 4.1 or 4.2,
as applicable, or (ii) each share of Stock shall have been converted into shares
of Common Stock.
If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Depositary thereafter shall discontinue the
transfer of Receipts, shall suspend the distribution of dividends to the holders
thereof and shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit Agreement, except as
provided below and that the Depositary shall continue to collect dividends and
other distributions pertaining to Stock, shall sell rights, preferences or
privileges as provided in this Deposit Agreement and shall continue to deliver
the Stock and any money and other property represented by Receipts, without
liability for interest thereon, upon surrender thereof by the holders thereof.
At any time after the expiration of two years from the date of termination, the
Depositary may sell Stock then held hereunder at public or private sale, at such
places and upon such terms as it deems proper and may thereafter hold in a
segregated account the net proceeds of any such sale, together with any money
and other property held by it hereunder, without liability for interest, for the
benefit, pro rata in accordance with their holdings, of the holders of Receipts
that have not heretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit Agreement
except to account for such net proceeds and money and other property. Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under Sections 5.7 and 5.8.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed by
the Company and the Depositary in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed an original, but
all such counterparts taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Deposit Agreement. Copies of this Deposit Agreement
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Receipt.
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<PAGE> 25
SECTION 7.2. Exclusive Benefits of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or telex or
telecopier confirmed by letter, addressed to the Company at 2000 Post Oak
Boulevard, Suite 100, Houston, Texas 77056-4400, Attention: Corporate Secretary,
or at any other place to which the Company may have transferred its principal
executive office.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to the Depositary at the Corporate Office.
Except as provided in the next paragraph, any notices given to any
record holder of a Receipt hereunder or under the Receipts shall be in writing
and shall be deemed to have been duly given if personally delivered or sent by
mail, or by telegram or telex or telecopier confirmed by letter, addressed to
such record holder at the address of such record holder as it appears on the
books of the Depositary or, if such holder shall have filed with the Depositary
a written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
In addition, whenever the Certificate of Designation requires any
notice to be published, the Depositary will, if requested by the Company, cause
such notice to be published in the manner directed by the Company.
Delivery of a notice sent by mail, or by telegram or telex or
telecopier shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a duly addressed letter confirming an earlier
notice in the case of a telegram or telex or telecopier message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex or telecopier message received by it
from the other or from any holder of a Receipt, notwithstanding that such
telegram or telex or telecopier message shall not subsequently be confirmed by
letter as aforesaid.
SECTION 7.5. Depositary's Agents. The Depositary may, with the approval
of the Company which approval shall not be unreasonably withheld, from time to
time appoint one or more Depositary's Agents to act in any respect for the
Depositary for the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
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<PAGE> 26
SECTION 7.6. Holders of Receipts Are Parties. Notwithstanding that
holders of Receipts have not executed and delivered this Deposit Agreement or
any counterpart thereof, the holders of Receipts from time to time shall be
deemed to be parties to this Deposit Agreement and shall be bound by all of the
terms and conditions, and be entitled to all of the benefits, hereof and of the
Receipts by acceptance of delivery of Receipts.
SECTION 7.7. Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
SECTION 7.8. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
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<PAGE> 27
IN WITNESS WHEREOF, Apache Corporation and Norwest Bank Minnesota,
National Association, have duly executed this Deposit Agreement as of the day
and year first above set forth and all holders of Receipts shall become parties
hereto by and upon acceptance by them of delivery of Receipts issued in
accordance with the terms hereof.
APACHE CORPORATION
Attest:
By: By:
----------------------------------- -----------------------------
Cheri L. Peper Authorized Officer
Corporate Secretary
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Depositary
Attest:
By: By:
----------------------------------- -----------------------------
Authorized Officer
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<PAGE> 28
EXHIBIT A
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company 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 in as much as the registered owner
hereof, Cede & Co., has an interest herein.
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING 1/50 OF A SHARE OF
AUTOMATICALLY CONVERTIBLE EQUITY SECURITIES,
CONVERSION PREFERRED STOCK, SERIES C
OF
APACHE CORPORATION
No. ____ CUSIP: 037411 60 0
Norwest Bank Minnesota, National Association (the "Depositary") hereby
certifies that Cede & Co. is the registered owner of
______________________________________________ (_________) Depositary Shares
(the "Depositary Shares"), each Depositary Share representing 1/50 of a share of
Automatically Convertible Equity Securities, Conversion Preferred Stock, Series
C, no par value (the "Stock"), of Apache Corporation, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company"),
deposited with the Depositary and the same proportionate interest in any and all
other property received by the Depositary in respect of such shares of Stock and
held by the Depositary under the Deposit Agreement (as defined below). Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share is
entitled, proportionately, to all the rights, preferences and privileges of the
Stock represented thereby, including the dividend, conversion, exchange, voting,
liquidation and other rights contained in the Certificate of Designations,
Preferences and Rights establishing the rights, preferences, privileges and
limitations of the Stock (the "Certificate of Designation"), copies of which are
on file at the office of the Depositary in The City of South St. Paul, at which
at any particular time its business in respect of matters governed by the
Deposit Agreement shall be administered, which at the time of the execution of
the Deposit Agreement is located at 161 North Concord Exchange, South St. Paul,
Minnesota 55075 (the "Corporate Office").
This Depositary Receipt ("Receipt") shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any purpose
unless this Receipt shall have been
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<PAGE> 29
executed manually or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile by the Depositary by the
signature of a duly authorized officer and, if executed by facsimile signature
of the Depositary, shall have been countersigned manually by such Registrar by
the signature of a duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF ANY DEPOSITED
STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH CAN BE TAKEN AS A STATEMENT OF THE
COMPANY SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS
EXPRESSLY SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES
OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK
AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF THE
DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT AGREEMENT,
AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST
OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt without charge,
upon request addressed to its executive office, a full statement of the
designation, relative rights, preferences and limitations of the shares of each
authorized class, and of each class of preferred stock authorized to be issued,
so far as the same may have been fixed, and a statement of the authority of the
Board of Directors of the Company to designate and fix the relative rights,
preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth for all purposes have the same effect as if set
forth at this place.
Dated: ________________, 1999
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Depositary and Registrar
By: ____________________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt Appear on the
Reverse Side.
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<PAGE> 30
[REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the "Receipts"),
of which this Receipt is one, are made available upon the terms and conditions
set forth in the Deposit Agreement, dated as of May 13, 1999 (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the Corporate
Office and at the office of any agent of the Depositary) sets forth the rights
of holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are subject to the detailed
provisions thereof, to which reference is hereby made. In the event of any
conflict between the provisions of this Receipt and the provisions of the
Deposit Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
3. Withdrawal of Stock Not Permitted. Holders of Receipts are not
entitled to receive any of the shares of Stock represented by such Receipts.
4. Transfers, Split-ups, Combinations. Subject to Paragraphs 6, 7
and 8 below, this Receipt is transferable on the books of the Depositary upon
surrender of this Receipt to the Depositary at the Corporate Office or at such
other offices as the Depositary may designate, properly endorsed or accompanied
by a properly executed instrument of transfer, and upon such transfer the
Depositary shall sign and deliver a Receipt or Receipts to or upon the order of
the person entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or combined with other
Receipts into one Receipt evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered; provided, however, that
the Depositary shall not issue any Receipt evidencing a fractional Depositary
Share.
5. Conversion Rights. This Receipt may be surrendered with
written instructions to the Depositary to instruct the Company to cause the
conversion of any specified number of whole or fractional shares of Stock
represented by the Depositary Shares evidenced thereby into whole shares of
Common Stock at the conversion rate then in effect for the Stock (and,
therefore, for the Depositary Shares) specified in the Certificate of
Designation, as such conversion rate may be adjusted by the Company from time to
time as provided in the Certificate of Designation. Subject to the terms and
conditions of the Deposit Agreement and the Certificate of Designation, a holder
of a Receipt or Receipts evidencing Depositary Shares representing whole or
fractional shares of Stock may surrender such Receipt or Receipts at the
Corporate Office, or to such office as the Depositary may designate for such
purpose, or to such Depositary's Agents as the Depositary may designate for such
purpose, together with a notice of conversion duly completed and executed,
thereby directing the Depositary to instruct the Company to cause the conversion
of the number of shares or fractions thereof of underlying Stock specified in
such notice of conversion into shares of Common Stock, and an assignment of such
Receipt or Receipts to the Company, to any transfer agent for the Depositary
Shares or in blank duly completed and executed. To the extent that a holder
delivers to the Depositary for conversion a Receipt or Receipts which in the
aggregate are convertible into less than one whole share of Common
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<PAGE> 31
Stock, the holder shall receive payment in lieu of such fractional share of
Common Stock as provided in the Certificate of Designation.
Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion, duly completed and executed, directing the Depositary to
instruct the Company to cause the conversion of a specified number of shares or
fractions thereof of Stock and an assignment of such Receipt or Receipts to the
Company, to any transfer agent for the Depositary Shares or in blank, duly
completed and executed, the Depositary shall instruct the Company (i) to cause
the conversion of the Depositary Shares evidenced by the Receipts so surrendered
for conversion as specified in the written notice to the Depositary and (ii) to
cause the delivery to the holders of such Receipts of a certificate or
certificates evidencing the number of whole shares of Common Stock, and the
amount of money, if any, to be delivered to the holders of Receipts surrendered
for conversion in payment of any accrued and unpaid dividends with respect to
such Depositary Shares and in lieu of fractional shares of Common Stock
otherwise issuable. The Company shall as promptly as practicable after receipt
thereof cause the delivery of (i) a certificate or certificates evidencing the
number of whole shares of Common Stock into which the Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been converted, and
(ii) any money or other property to which the holder is entitled. Upon such
conversion, the Depositary (i) shall deliver to the holder a Receipt evidencing
the number of Depositary Shares, if any, which such holder has elected not to
convert and evidencing the number of Depositary Shares, if any, in excess of the
number of Depositary Shares representing Stock which has been so converted, (ii)
shall cancel the Depositary Shares evidenced by Receipts surrendered for
conversion and (iii) shall deliver to the Company or its transfer agent for the
Stock for cancellation the shares of Stock represented by the Depositary Shares
evidenced by the Receipts so surrendered and so converted.
The holder of Depositary Shares on any dividend payment record date
established by the Depositary shall be entitled to receive the dividend payable
with respect to such Depositary Shares on the corresponding dividend payment
date notwithstanding the subsequent conversion of the shares of Stock to which
such Depositary Shares relate. If a share of Stock is converted between the
record date with respect to any dividend payment on the Stock and the next
succeeding dividend payment date, any holder of Receipts surrendered with
instructions to the Depositary for conversion of the underlying Stock shall pay
to the Depositary an amount equal to the dividend payable on such dividend
payment date on the Depositary Shares represented by the Receipts being
surrendered for conversion. Any holder of Receipts on a dividend payment record
date who (or whose transferee) surrenders the Receipts with instructions to the
Depositary for conversion of the underlying Stock on the corresponding dividend
payment date will receive the dividend payable with respect to the Depositary
Shares underlying such Receipts and will not be required to include payment of
the amount of such dividend upon surrender of the Receipts for conversion.
Upon the conversion of any shares of Stock for which a request for
conversion has been made by the holder of Depositary Shares representing such
shares, all dividends in respect of such Depositary Shares shall cease to
accrue, such Depositary Shares shall be deemed no longer outstanding, all rights
of the holder of the Receipt with respect to such Depositary Shares (except the
right to receive the Common Stock, any cash payable with respect to any
fractional shares of Common Stock as provided herein, any cash payable on
account of accrued dividends with respect to such Depositary Shares, and any
Receipts evidencing Depositary Shares not so
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<PAGE> 32
converted) shall terminate, and the Receipt evidencing such Depositary Shares
shall be cancelled.
6. Conditions to Signing and Delivery, Transfer, etc., of
Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination or surrender of this Receipt, the delivery of any
distribution hereon or deposit of Stock, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto (including any such tax or charge
with respect to Stock being deposited or withdrawn); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature; and
(iii) compliance with such reasonable regulations, if any, as the Depositary or
the Company may establish not inconsistent with the Deposit Agreement. Any
person presenting Stock for deposit, or any holder of this Receipt, may be
required to file such proof of information, to execute such certificates and to
make such representations and warranties as the Depositary or the Company may
reasonably deem necessary or proper. The Depositary or the Company may withhold
or delay the delivery of this Receipt, the registration of transfer of this
Receipt, the withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or other
distribution until such proof or other information is filed, such certificates
are executed or such representations and warranties are made.
7. Suspension of Delivery, Transfer, etc. The registration of
transfer, split-up, combination or surrender of this Receipt may be suspended
(i) during any period when the register of stockholders of the Company is
closed, (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit
Agreement, or (iii) with the approval of the Company, for any other reason.
8. Payment of Taxes or Other Governmental Charges. If any tax or
other governmental charge shall become payable by or on behalf of the Depositary
with respect to (i) this Receipt, (ii) the Depositary Shares evidenced by this
Receipt, (iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction referred to in
Section 4.6 of the Deposit Agreement, such tax (including transfer, issuance or
acquisition taxes, if any) or governmental charge shall be payable by the holder
of this Receipt, who shall pay the amount thereof to the Depositary. Until such
payment is made, registration or transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or other property, if
any, represented by the Depositary Shares evidenced by this Receipt may be
refused, any dividend or other distribution may be withheld and any part or all
of the Stock or other property represented by the Depositary Shares evidenced by
this Receipt may be sold for the account of the holder hereof (after attempting
by reasonable means to notify such holder prior to such sale). Any dividend or
other distribution so withheld and the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of this
Receipt remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any provision of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the
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<PAGE> 33
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall materially and
adversely alter the rights of the holders of Receipt shall be effective as to
outstanding Receipts until the expiration of 90 days after notice of such
amendment shall have been given to the record holders of outstanding Receipts
and unless such amendment shall have been approved by the holders of at least a
majority of the Depositary Shares outstanding. In no event shall any amendment
impair the right, subject to the provisions of Paragraphs 3, 6, 7, and 8 hereof
and of Sections 2.3, 2.5 and 2.6 and Article III of the Deposit Agreement, of
the owner of the Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the holder the Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
10. Fees, Charges and Expenses. The Company will pay all fees,
charges and expenses of the Depositary, except for taxes (including transfer
taxes, if any) and other governmental charges and such charges as are expressly
provided in the Deposit Agreement to be at the expense of persons depositing
Stock, holders of Receipts or other persons.
11. Title to Receipts. It is a condition of this Receipt, and
every successive holder hereof by accepting or holding the same consents and
agrees, that title to this Receipt (and to the Depositary Shares evidenced
hereby), when properly endorsed or accompanied by a properly executed instrument
of transfer, is transferable by delivery with the same effect as in the case of
investment securities in general; provided, however, that the Depositary may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in the Deposit Agreement and for all other purposes.
12. Dividends and Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement, distribute
to record holders of Receipts such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in respect of the
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
owner of Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
13. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose name
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
in such manner as the Company shall instruct.
-6-
<PAGE> 34
14. Notice of Dividends, Fixing of Record Date. Whenever (i) any
cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii) the
Depositary shall receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to notice, the
Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts (x) who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting.
15. Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the record holders of Receipts a notice, which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders of Receipts at the close of business on a
specified record date determined as provided in Paragraph 14 will be entitled,
subject to any applicable provision of law, the Certificate of Incorporation or
the Certificate of Designation, to instruct the Depositary as to the exercise of
the voting rights pertaining to the Stock represented by their respective
Depositary Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of this Receipt
on such record date, the Depositary shall endeavor insofar as practicable to
vote or cause to be voted the Stock represented by the Depositary Shares
evidenced by this Receipt in accordance with the instructions set forth in such
request. The Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the Depositary to vote
such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of this Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares evidenced
by this Receipt.
16. Reports, Inspection of Transfer Books. The Depositary will
transmit to the holders of Receipts copies of all notices and reports (including
all financial statements) received from the Company that are received by the
Depositary as the holder of Stock. The Depositary, acting as transfer agent and
Registrar, shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be open for
inspection by the record holders of Receipts; provided that any such holder
requesting to exercise such right shall certify to the Depositary that such
inspection shall be for a proper purpose reasonably related to such person's
interest as an owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall incur any liability to any holder of this
Receipt, if by reason of any provision of any present or future law or
regulation thereunder of the United States of America or of any other
governmental authority or, in the case of the Depositary, the Registrar or any
Depositary's Agent, by reason of any provision present or future, of the
Certificate of Incorporation or the Certificate of Designation or, in the case
of the Company, the Depositary, the Registrar or any Depositary's Agent, by
reason of any act of God or war or other circumstances beyond the control of the
relevant party, the Depositary, any Depositary's Agent, the Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of the Deposit Agreement provide shall be done or
performed; nor shall the Depositary,
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<PAGE> 35
any Depositary's Agent, the Registrar or the Company incur any liability to any
holder of this Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or the
Registrar, if such exercise or failure to exercise discretion is caused by its
gross negligence or willful misconduct.
18. Obligations of the Depositary, the Depositary's Agent, the
Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good faith such obligations
as are specifically set forth and undertaken by it to perform in the Deposit
Agreement. Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under the Deposit
Agreement or this Receipt to the holder hereof or other persons, except to
perform such obligations as are specifically set forth and undertaken by it to
perform in the Deposit Agreement without gross negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to Stock, Depositary Shares or
Receipts or Common Stock that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor
the Company will be liable for any action or failure to act by it in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Stock for deposit, any holder of this Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
19. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company or the Depositary upon or after the occurrence of any
of the following events: (i) there shall have been made a final distribution in
respect of the Stock in connection with any liquidation, dissolution or winding
up of the Company and such distribution shall have been distributed to the
holders of Receipts; or (ii) each share of Stock shall have been converted into
shares of Common Stock. Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations thereunder except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.7 and 5.8 of the Deposit Agreement.
If any Receipts remain outstanding after the date of termination of the
Deposit Agreement, the Depositary thereafter shall discontinue all functions and
be discharged from all obligations as provided in the Deposit Agreement, except
as specifically provided therein.
20. Governing Law. The Deposit Agreement and this Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
-8-
<PAGE> 36
-----------------------------------
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ______________________ the within Receipt and all rights and interests
represented by the Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints ______________________ his attorney, to transfer the
same on the books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature:
------------------------- ----------------------------------
NOTE: The signature to this
assignment must correspond with
the name as written upon the face
of the Receipt in every
particular, without alteration or
enlargement, or any change
whatever.
-9-
<PAGE> 1
EXHIBIT 2
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
NUMBER [APACHE CORPORATION LOGO] SHARES
---------- ----------
AUTOMATICALLY CONVERTIBLE EQUITY SECURITIES,
CONVERSION PREFERRED STOCK, SERIES C
CUSIP 037411 70 9
See reverse for certain definitions
This Certifies That__________________________________________________________
_____________________________________________________________________________
is the owner of _____________________________________________________________
fully paid and non-assessable shares of the Automatically Convertible Equity
Securities, Conversion Preferred Stock, Series C, no par value per share, of
Apache Corporation, transferable only on the books of the corporation by the
holder hereof in person or by attorney upon surrender of this certificate
properly endorsed.
A statement of the relative rights, preferences and restrictions of the shares
of stock which the corporation is authorized to issue will be furnished without
charge to each stockholder upon request therefor.
IN WITNESS WHEREOF, the said corporation has caused this certificate to be
signed by its duly authorized officers and to be sealed with the seal of the
corporation.
Dated
-----------------
[Apache Corporation Seal]
- --------------------------- ------------------------------------
Cheri L. Peper, Secretary Z. S. Kobiashvili, Vice President
Countersigned:
NORWEST BANK MINNESOTA, N.A.
South St. Paul, Minnesota
Transfer Agent and Registrar
By:
--------------------------------
Authorized Signature
<PAGE> 2
APACHE CORPORATION
The Corporation will mail to the holder of the shares of Automatically
Convertible Equity Securities, Conversion Preferred Stock, Series C ("Preferred
Stock") represented by this Certificate, without charge within five days after
receipt of written request therefor, a copy of the express terms of the shares
represented by this Certificate and of the other classes and series of shares
which the Corporation is authorized to issue.
The shares represented by this Certificate are convertible into Common Stock in
accordance with the express terms of the Preferred Stock at any time prior to
May 15, 2002, the date fixed for mandatory redemption at the rate of, subject
to adjustment, 40.985 shares of Common Stock for one share of Preferred Stock so
converted.
The shares represented hereby may be converted by (1) endorsing this Certificate
for transfer to the Corporation, (2) executing the form set forth below, and (3)
surrendering this Certificate to the transfer agent.
NOTICE OF ELECTION TO CONVERT
The undersigned hereby irrevocably exercises the right to convert shares of the
Automatically Convertible Equity Securities, Conversion Preferred Stock, Series
C represented by this Certificate into Common Stock of Apache Corporation in
accordance with the terms of the Automatically Convertible Equity Securities,
Conversion Preferred Stock, Series C relating thereto.
Dated: Signature
------------------------------ -----------------------------
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM --- as tenants in common UNIF TRF MIN ACT --- Custodian
------- -------
(Cust) (minor)
TEN ENT --- as tenants by the entireties Under Uniform Transfers to Minors
JT TEN --- as joint tenants with right of Act
survivorship and not as tenants ----------------------------
in common (State)
Additional abbreviations may also be used though not in the above list
For value received, ____________ hereby sell, assign and transfer unto
</TABLE>
Please insert Social Security or Other
Identifying Number of Assignee
- ------------------------------------
- ------------------------------------
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
_______________________________________________________________________________
_______________________________________________________________________________
____________________________________________________Shares of the capital stock
represented by the within Certificate, and do hereby irrevocably constitute and
appoint _________________________________Attorney to transfer the said stock on
the books of the within-named Corporation with full power of substitution in the
premises.
Dated:
-------------------------
----------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY ---------------------------------------
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
-----------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
ELIGIBLE GUARANTOR INSTITUTION, (Banks,
Stockbrokers, Savings And Loan
Associations And Credit Unions) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM PURSUANT TO
S.E.C. RULE 17 AD-15.
-----------------------------------------
<PAGE> 1
EXHIBIT 3
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS
OF
AUTOMATICALLY CONVERTIBLE EQUITY SECURITIES,
CONVERSION PREFERRED STOCK, SERIES C
OF
APACHE CORPORATION
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Apache Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Corporation"), in accordance with
the provisions of Section 103 thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in accordance
with the provisions of the Restated Certificate of Incorporation, as amended, of
the Corporation, which authorizes the issuance by the Corporation of up to five
million (5,000,000) shares of no par value preferred stock, which authority was
delegated by the Board of Directors to a committee of the Board of Directors
(the "Committee") pursuant to resolutions adopted on April 2, 1999 and April 26,
1999, the Committee by unanimous written consent dated May 12, 1999, adopted the
following resolution creating and providing for the issuance of a series of
preferred stock of the Corporation:
RESOLVED: That, pursuant to the authority delegated by the Board of
Directors of the Corporation, the Committee hereby creates a series of
preferred stock of the Corporation and hereby states the designation
and number of shares, and fixes the relative rights, preferences and
limitations thereof (in addition to the provisions set forth in the
Restated Certificate of Incorporation of the Corporation, which are
applicable to all series of the Corporation's preferred stock) as
follows:
AUTOMATICALLY CONVERTIBLE EQUITY SECURITIES,
CONVERSION PREFERRED STOCK, SERIES C
1. Number of Shares and Designation. One hundred forty thousand
(140,000) shares of the five million (5,000,000) authorized shares of no par
value preferred stock of the Corporation are hereby constituted as a series of
preferred stock, no par value per share, designated as "Automatically
Convertible Equity Securities, Conversion Preferred Stock, Series C"
(hereinafter called the "Series C Preferred Stock"). The Board of Directors may
increase or decrease the number of shares of the series, but may not decrease
the number of shares below the number of shares then outstanding.
<PAGE> 2
2. Ranking. The Series C Preferred Stock shall rank prior and superior
to all of the common stock, $1.25 par value per share, of the Corporation (the
"Common Stock") now or hereafter outstanding, and prior and superior to the
Series A Junior Participating Preferred Stock of the Corporation (the "Series A
Preferred Stock") as to payment of dividends and distribution of assets upon
dissolution, liquidation or winding up of the Corporation. The Series C
Preferred Stock shall rank equal to the Corporation's 5.68% Cumulative Preferred
Stock, Series B (the "Series B Preferred Stock"), as to payment of dividends and
distribution of assets upon dissolution, liquidation or winding up of the
Corporation.
3. Dividends.
(i) General. Cumulative cash dividends shall be payable on each share
of Series C Preferred Stock when, as and if declared by the Board of Directors
of the Corporation or a duly authorized committee thereof, out of the assets of
the Corporation legally available therefor.
Dividends on the Series C Preferred Stock shall be payable quarterly,
when, as and if declared by the Board of Directors of the Corporation or a duly
authorized committee thereof on the 15th calendar day (or the preceding business
day if the 15th calendar day is not a business day) of February, May, August and
November of each year (each such date being referred to herein as a "Dividend
Payment Date") at the annual rate of $100.75 per share. The initial dividend on
the Series C Preferred Stock for the dividend period commencing on May 18, 1999,
to but excluding August 15, 1999, will be $24.348 per share, and shall be
payable on August 13, 1999. The amount of dividends payable on each share of
Series C Preferred Stock for each full quarterly period thereafter shall be
computed by dividing the annual dividend rate by four. The amount of dividends
payable for any other period that is shorter or longer than a full quarterly
dividend period will be computed on the basis of a 360-day year consisting of
twelve 30-day months.
A dividend period with respect to a Dividend Payment Date is the period
commencing on the preceding Dividend Payment Date or, if none, the date of issue
and ending on the day immediately prior to the next Dividend Payment Date.
Dividends payable, if declared, on a Dividend Payment Date shall be payable to
holders of record as they appear on the stock books of the Corporation on the
record date, which shall be the last business day of the calendar month
preceding the calendar month in which the applicable Dividend Payment Date falls
(each, a "Dividend Record Date").
Dividends on the Series C Preferred Stock shall be cumulative if the
Corporation fails to declare one or more dividends on the Series C Preferred
Stock in any amount, whether or not the earnings or financial condition of the
Corporation were sufficient to pay such dividends in whole or in part.
Holders of shares of Series C Preferred Stock shall not be entitled to
any dividend, whether payable in cash, property or stock, in excess of full
dividends (including accrued dividends, if any) on shares of Series C Preferred
Stock. No interest or sum of money in lieu of interest shall be payable in
respect of any dividend or payment which may be in arrears.
Dividends in arrears on the Series C Preferred Stock payable, if
declared, but not declared for payment or paid on any Dividend Payment Date may
be declared by the Board of
2
<PAGE> 3
Directors of the Corporation or a duly authorized committee thereof and paid on
any date fixed by the Board of Directors of the Corporation or a duly authorized
committee thereof, whether or not a Dividend Payment Date, to the holders of
record of the shares of Series C Preferred Stock, as they appear on the stock
register of the Corporation on such record date, which shall be not less than
ten nor more than 30 days prior to the payment date therefor, as shall be fixed
by the Board of Directors of the Corporation or a duly authorized committee
thereof.
(ii) Payment Restrictions. The Corporation may not declare or pay any
dividend or make any distribution of assets (other than dividends paid or other
distributions made in stock of the Corporation ranking junior to the Series C
Preferred Stock as to the payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up) on, or redeem, purchase or
otherwise acquire (except upon conversion or exchange for stock of the
Corporation ranking junior to the Series C Preferred Stock as to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up), shares of Common Stock, of Series A Preferred Stock or of any other
stock of the Corporation ranking junior to the Series C Preferred Stock as to
the payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, unless all accrued and unpaid dividends on the Series
C Preferred Stock for all prior dividend periods have been or contemporaneously
are declared and paid and the full quarterly dividend on the Series C Preferred
Stock for the current dividend period has been or contemporaneously is declared
and set apart for payment.
Whenever all accrued dividends on the Series C Preferred Stock are not
paid in full, the Corporation may not declare or pay dividends or make any
distribution of assets (other than dividends paid or other distributions made in
stock of the Corporation ranking junior to the Series C Preferred Stock as to
the payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up) on any other stock of the Corporation ranking on a
parity with the Series C Preferred Stock as to the payment of dividends,
including the Series B Preferred Stock, unless (a) all accrued and unpaid
dividends on the Series C Preferred Stock for all prior dividend periods are
contemporaneously declared and paid or (b) all dividends declared and paid or
set apart for payment or other distributions made on the Series C Preferred
Stock and any other stock of the Corporation ranking on a parity with the Series
C Preferred Stock as to the payment of dividends, including the Series B
Preferred Stock, are declared and paid or set apart for payment or made pro rata
so that the amount of dividends declared and paid or set apart for payment or
other distributions made per share on the Series C Preferred Stock and such
other stock of the Corporation will bear the same ratio that accrued and unpaid
dividends per share on the Series C Preferred Stock and such other stock of the
Corporation bear to each other.
Whenever all accrued dividends on the Series C Preferred Stock are not
paid in full, the Corporation may not redeem, purchase or otherwise acquire
(except upon conversion or exchange for stock of the Corporation ranking junior
to the Series C Preferred Stock as to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up) other stock
of the Corporation ranking on a parity with the Series C Preferred Stock as to
the payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, including the Series B Preferred Stock, unless (a)
all outstanding shares of the Series C Preferred Stock are contemporaneously
redeemed or (b) a pro rata redemption is made of shares of Series C Preferred
Stock and such other stock of the Corporation, with the amount allocable to each
series of such stock determined on the basis of the aggregate liquidation
preference of the outstanding shares of each series and the shares of each
series being redeemed only on a pro rata basis.
3
<PAGE> 4
4. Liquidation Preference. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation, the holders of shares
of Series C Preferred Stock shall be entitled to receive out of the assets of
the Corporation available for distribution to stockholders, before any
distribution of assets is made on the Common Stock of the Corporation or any
other class or series of stock of the Corporation ranking junior to the Series C
Preferred Stock, upon liquidation, a liquidating distribution in the amount of
$1,550 per share, plus an amount equal to the sum of all accrued and unpaid
dividends (whether or not earned or declared) for the then-current dividend
period and all dividend periods prior thereto.
Neither the sale of all or substantially all of the property or
business of the Corporation, nor the merger, conversion or consolidation of the
Corporation into or with any other corporation, nor the merger, conversion or
consolidation of any other corporation into or with the Corporation shall
constitute a liquidation, dissolution or winding up, voluntary or involuntary,
for the purposes of the foregoing paragraph. After the payment to the holders of
the shares of Series C Preferred Stock of the full preferential amounts provided
for above, the holders of the shares of Series C Preferred Stock as such shall
have no right or claim to any of the remaining assets of the Corporation.
In the event the assets of the Corporation available for distribution
to the holders of the shares of Series C Preferred Stock upon any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts to which such holders are
entitled as provided above, no such distribution shall be made on account of any
other stock of the Corporation ranking on a parity with the Series C Preferred
Stock as to the distribution of assets upon such liquidation, dissolution or
winding up, including the Series B Preferred Stock, unless a pro rata
distribution is made on the Series C Preferred Stock and such other stock of the
Corporation, with the amount allocable to each series of such stock determined
on the basis of the aggregate liquidation preference of the outstanding shares
of each series and distributions to the shares of each series being made on a
pro rata basis.
5. Voting Rights.
(i) The holders of shares of Series C Preferred Stock shall have no
voting rights, except as set forth below or as expressly required by applicable
law. In exercising any such vote, each outstanding share of Series C Preferred
Stock shall be entitled to one vote.
(ii) If the equivalent of six quarterly dividends payable, whether
consecutively or not, on the Series C Preferred Stock or any other class or
series of preferred stock ranking on a parity with the Series C Preferred Stock
as to the payment of dividends, including the Series B Preferred Stock, has not
been paid, the number of directors of the Corporation shall be increased by two
(without duplication of any increase made pursuant to the terms of any other
series of preferred stock of the Corporation), and the holders of the Series C
Preferred Stock, voting as a single class with the holders of shares of any
other class of the preferred stock of the Corporation ranking on a parity with
the Series C Preferred Stock either as to dividends or distribution of assets
and upon which like voting rights have been conferred and are exercisable, shall
have the exclusive right to vote for and to elect such two directors at any
meeting of stockholders of the Corporation at which directors are to be elected
held during the period such dividends remain in arrears. Each class or series of
preferred stock entitled to vote for the additional directors shall
4
<PAGE> 5
have a number of votes proportionate to the aggregate liquidation preference of
its outstanding shares. Such voting right shall continue until full cumulative
dividends for all past dividend periods on all such preferred stock of the
Corporation, including any shares of the Series B Preferred Stock and the Series
C Preferred Stock, have been paid or declared and set apart for payment. Any
such elected directors shall serve until the Corporation's next annual meeting
of stockholders (notwithstanding that prior to the end of such term the right to
elect directors shall cease to exist) or until their respective successors shall
be elected and qualify.
(iii) Whenever such right shall vest, it may be exercised initially
either at a special meeting of holders of Series C Preferred Stock or at any
annual stockholders' meeting, but thereafter it shall be exercised only at
annual stockholders' meetings. Any director who shall have been elected by the
holders of Series C Preferred Stock as a class pursuant to this Section 5 may be
removed at any time, either for or without cause by, and only by, the
affirmative votes of the holders of record of a majority of the outstanding
shares of Series C Preferred Stock given at a special meeting of such
stockholders called for such purpose, and any vacancy created by such removal
may also be filled at such meeting. Any vacancy caused by the death or
resignation of a director who shall have been elected by the holders of Series C
Preferred Stock as a class pursuant to this Section 5 may be filled only by the
holders of all outstanding Series C Preferred Stock at a meeting called for such
purpose.
Any meeting of the holders of all outstanding Series C Preferred Stock
entitled to vote as a class for the election or removal of directors shall be
held at the place at which the last annual meeting of stockholders was held. At
such meeting, the presence in person or by proxy of the holders of a majority of
the outstanding shares of all outstanding Series C Preferred Stock shall be
required to constitute a quorum; in the absence of a quorum, a majority of the
holders present in person or by proxy shall have the power to adjourn the
meeting from time to time without notice, other than announcement at the
meeting, until a quorum shall be present.
(iv) So long as any Series C Preferred Stock is outstanding, the
affirmative vote or consent of the holders of at least 80% of the outstanding
shares of the Series C Preferred Stock will be required for any amendment of the
Restated Certificate of Incorporation of the Corporation (or any certificate
supplemental thereto) which will adversely affect the powers, preferences,
privileges or rights of the Series C Preferred Stock. The affirmative vote or
consent of the holders of at least 80% of the outstanding shares of the Series C
Preferred Stock and any other series of the preferred stock of the Corporation
ranking on a parity with the Series C Preferred Stock either as to dividends or
upon liquidation, voting as a single class without regard to series, will be
required to issue, authorize or increase the authorized amount of, or issue or
authorize any obligation or security convertible into or evidencing a right to
purchase, any additional class or series of stock ranking prior to the Series C
Preferred Stock as to dividends or upon dissolution, or to reclassify any
authorized stock of the Corporation into such prior shares; but such vote will
not be required for the Corporation to issue, authorize or increase the
authorized amount of, or issue or authorize any obligation or security
convertible into or evidencing a right to purchase, any stock ranking on a
parity with or junior to the Series C Preferred Stock.
The affirmative vote or consent of the holders of a majority of all the
outstanding shares of Series C Preferred Stock, voting or consenting separately
as a class, shall be required to approve any merger, conversion, consolidation
or compulsory share exchange to which the
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Corporation is a party, unless (a) the terms of such merger, conversion,
consolidation or compulsory share exchange do not provide for a change in the
terms of the Series C Preferred Stock and (b) the Series C Preferred Stock is on
a parity with or prior to (in respect of the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up) any other
class or series of capital stock authorized by the surviving corporation, other
than any class or series of stock of the Corporation ranking senior as to the
Series C Preferred Stock either as to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation and previously authorized with the consent of holders of Series C
Preferred Stock as described herein (or other than any capital stock into which
such prior stock is converted as a result of such merger, consolidation or
compulsory share exchange).
6. Conversion.
(i) Mandatory Conversion. Unless earlier converted at the option of the
holder in accordance with the provisions of Section 6(ii), on May 15, 2002 (the
"Mandatory Conversion Date"), each outstanding share of the Series C Preferred
Stock shall convert automatically (the "Automatic Conversion") into (a) shares
of authorized Common Stock at the Exchange Rate (as hereinafter defined) in
effect on the Mandatory Conversion Date and (b) the right to receive an amount
in cash equal to all accrued and unpaid dividends on such share of Series C
Preferred Stock to the Mandatory Conversion Date, whether or not earned or
declared, out of funds legally available therefor. The Exchange Rate is equal to
(a) if the Current Market Price is greater than or equal to $37.82 per share
(the "Threshold Price"), 40.985 shares of Common Stock (the "Upper Exchange
Rate"), (b) if the Current Market Price is less than the Threshold Price but
greater than the Initial Price, the number of shares of Common Stock having a
value (determined at the Current Market Price) equal to 50 times the Initial
Price (the "Middle Exchange Rate"), and (c) if the current Market Price is less
than or equal to the Initial Price, 50 shares of Common Stock (the "Lower
Exchange Rate") per share of Series C Preferred Stock, and is subject to
adjustment as set forth in Section 6(iii) and Section 6(iv) below. Dividends on
the shares of Series C Preferred Stock shall cease to accrue and such shares of
Series C Preferred Stock shall cease to be outstanding on the Mandatory
Conversion Date. The Corporation shall make such arrangements as it deems
appropriate for the issuance of certificates representing shares of Common
Stock, and for the payment of cash in respect of such accrued and unpaid
dividends on the Series C Preferred Stock, if any, or cash in lieu of fractional
shares of Common Stock, if any, in exchange for and contingent upon surrender of
certificates representing the shares of Series C Preferred Stock, and the
Corporation may defer the payment of dividends on such shares of Common Stock
and the voting thereof until, and make such payment and voting contingent upon,
the surrender of such certificates representing the shares of Series C Preferred
Stock, provided that the Corporation shall give the holders of the shares of
Series C Preferred Stock such notice of any such actions as the Corporation
deems appropriate and upon such surrender such holders shall be entitled to
receive such dividends declared and paid on such shares of Common Stock
subsequent to the Mandatory Conversion Date. Amounts payable in cash in respect
of the shares of Series C Preferred Stock or in respect of such shares of Common
Stock shall not bear interest.
(ii) Optional Conversion. Shares of Series C Preferred Stock are
convertible, in whole or in part, at the option of the holders thereof
("Optional Conversion"), at any time prior to the Mandatory Conversion Date,
into shares of Common Stock at a rate of 40.985 shares
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of Common Stock for each share of Series C Preferred Stock (the "Optional
Conversion Rate"), subject to adjustment as set forth in Section 6(iii) and
Section 6(iv) below.
Optional conversion of shares of Series C Preferred Stock may be
effected by delivering certificates evidencing such shares, together with
written notice of conversion and a proper assignment of such certificates to the
Corporation or in blank (and, if applicable, payment of an amount equal to the
dividend payable on such shares), to the office of the Transfer Agent for the
Series C Preferred Stock or to any other office or agency maintained by the
Corporation for that purpose and otherwise in accordance with Optional
Conversion procedures established by the Corporation. Each Optional Conversion
shall be deemed to have been effected immediately prior to the close of business
on the date on which the foregoing requirements shall have been satisfied. The
Optional Conversion shall be at the Optional Conversion Rate in effect at such
time and on such date.
Holders of shares of Series C Preferred Stock at the close of business
on a Dividend Record Date shall be entitled to receive the dividend payable on
such shares on the corresponding Dividend Payment Date notwithstanding the
Optional Conversion of such shares following such Dividend Record Rate and prior
to such Dividend Payment Date. However, shares of Series C Preferred Stock
surrendered for Optional Conversion after the close of business on a Dividend
Record Date and before the opening of business on the next succeeding Dividend
Payment Date must be accompanied by payment in cash of an amount equal to the
dividend payable on such shares on such Dividend Payment Date. Except as
provided above, upon any Optional Conversion of shares of Series C Preferred
Stock, the Corporation shall make no payment or allowance for unpaid preferred
dividends, whether or not in arrears, on such shares of Series C Preferred Stock
as to which Optional Conversion has been effected or for dividends or
distributions on the shares of Common Stock issued upon such Optional
Conversion.
(iii) Adjustments to the Exchange Rate and the Optional Conversion
Rate. The Exchange Rate and the Optional Conversion Rate shall each be subject
to adjustment from time to time as provided below in this Section 6(iii).
(a) If the Corporation shall pay or make a dividend or other
distribution with respect to its Common Stock in shares of Common Stock
(including by way of reclassification of any shares of its Common
Stock), the Exchange Rate and the Optional Conversion Rate in effect at
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or
other distribution shall each be increased by multiplying such Exchange
Rate and Optional Conversion Rate by a fraction of which the numerator
shall be the sum of the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the
total number of shares of Common Stock constituting such dividend or
other distribution, and of which the denominator shall be the number of
shares of Common Stock outstanding at the close of business on the date
fixed for such determination, such increase to become effective
immediately after the opening of business on the day following the date
fixed for such determination.
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(b) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock,
the Exchange Rate and the Optional Conversion Rate in effect at the
opening of business on the day following the day upon which such
subdivision or split becomes effective shall each be proportionately
increased, and, conversely, in case outstanding shares of Common Stock
shall be combined into a smaller number of shares of Common Stock, the
Exchange Rate and the Optional Conversion Rate in effect at the opening
of business on the day following the day upon which such combination
becomes effective shall each be proportionately reduced, such increases
or reductions, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which
such subdivision, split or combination becomes effective.
(c) If the Corporation shall, after the date hereof, issue
rights or warrants, in each case other than the Rights, to all holders
of its Common Stock entitling them (for a period not exceeding 45 days
from the date of such issuance) to subscribe for or purchase shares of
Common Stock at a price per share less than the Fair Market Value of
the Common Stock on the record date for the determination of
stockholders entitled to receive such rights or warrants, then in each
case the Exchange Rate and the Optional Conversion Rate shall each be
adjusted by multiplying the Exchange Rate and the Optional Conversion
Rate in effect on such record date by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding on the date
of issuance of such rights or warrants, immediately prior to such
issuance, plus the number of additional shares of Common Stock offered
for subscription or purchase pursuant to such rights or warrants, and
of which the denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants,
immediately prior to such issuance, plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares
of Common Stock so offered for subscription or purchase pursuant to
such rights or warrants would purchase at such Fair Market Value
(determined by multiplying such total number of shares by the exercise
price of such rights or warrants and dividing the product so obtained
by such Fair Market Value). Shares of Common Stock owned by the
Corporation or by another company of which a majority of the shares
entitled to vote in the election of directors are held, directly or
indirectly, by the Corporation shall not be deemed to be outstanding
for purposes of such computation. Such adjustment shall become
effective at the opening of business on the business day next following
the record date for the determination of stockholders entitled to
receive such rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or
warrants, the Exchange Rate and the Optional Conversion Rate shall each
be readjusted to the Exchange Rate and the Optional Conversion Rate
which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made upon the basis of the
issuance of rights or warrants in respect of only the number of shares
of Common Stock actually delivered.
(d) If the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock consisting of evidences
of its indebtedness, securities, cash or other assets (including shares
of capital stock of the Corporation other than Common Stock but
excluding any cash dividends or distributions and any dividends or
other
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distributions referred to in clauses (a) and (b) above), or shall issue
to all holders of its Common Stock rights or warrants to subscribe for
or purchase any of its securities (other than those referred to in
clause (c) above), then in each such case the Exchange Rate and the
Optional Conversion Rate shall each be adjusted by multiplying the
Exchange Rate and the Optional Conversion Rate in effect on the record
date for such dividend or distribution or for the determination of
stockholders entitled to receive such rights or warrants, as the case
may be, by a fraction of which the numerator shall be the Fair Market
Value per share of the Common Stock on such record date), and of which
the denominator shall be such Fair Market Price per share of Common
Stock less the Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive) as of such record
date of the portion of the evidences of indebtedness or assets so
distributed, or of such subscription rights or warrants, applicable to
one share of Common Stock. Such adjustment shall become effective on
the opening of business on the business day next following the record
date for such dividend or distribution or for the determination of
stockholders entitled to receive such rights or warrants, as the case
may be.
(e) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed in a transaction to which Section 6(iv) applies or
as part of a distribution referred to in Section 6(iii)(d)) in an
aggregate amount that, combined together with (1) the aggregate amount
of any other distributions to all holders of its Common Stock made
exclusively in cash within the 12 months preceding the date of payment
of such distribution and in respect of which no adjustment pursuant to
this Section 6(iii)(e) or Section 6(iii)(f) has been made and (2) the
aggregate of any cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors) of any non-cash
consideration payable in respect of any tender or exchange offer by the
Corporation or any of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of such distribution and in respect of which no adjustment
pursuant to this Section 6(iii)(e) or Section 6(iii)(f) has been made,
exceeds 12.5% of the product of the Current Market Price per share of
the Common Stock on the date for the determination of holders of shares
of Common Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each
such case, immediately after the close of business on such date for
determination, each of the Exchange Rate and the Optional Conversion
Rate shall be increased so that the Exchange Rate and the Optional
Conversion Rate shall equal the rate determined by dividing the
Exchange Rate and the Optional Conversion Rate, respectively, in effect
immediately prior to the close of business on the date fixed for
determination of the stockholders entitled to receive such distribution
by a fraction (1) the numerator of which shall be equal to the Current
Market Price per share of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the excess of
such combined amount over such 12.5% and (y) the number of shares of
Common Stock outstanding on such date for determination and (2) the
denominator of which shall be equal to the Current Market Price per
share of the Common Stock on such date for determination.
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(f) In case a tender or exchange offer made by the Corporation
or any subsidiary of the Corporation for all or any portion of the
Common Stock shall expire and such tender or exchange offer (as amended
upon the expiration thereof) shall require the payment to stockholders
of an aggregate consideration having a fair market value (as determined
by the Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors) that combined
together with (1) the aggregate of the cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors), as
of the expiration of the applicable tender or exchange offer, of any
non-cash consideration payable in respect of any other tender or
exchange offer, by the Corporation or any subsidiary of the Corporation
for all or any portion of the Common Stock expiring within the 12
months preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to Section 6(iii)(e) or this
Section 6(iii)(f) has been made and (2) the aggregate amount of any
distributions to all holders of the Corporation's Common Stock made
exclusively in cash within the 12 months preceding the expiration of
such tender or exchange offer and in respect of which no adjustment
pursuant to Section 6(iii)(e) or this Section 6(iii)(f) has been made,
exceeds 12.5% of the product of the Current Market Price per share of
the Common Stock as of the last time (the "Expiration Time") tenders
could have been made pursuant to such tender or exchange offer (as it
may be amended) times the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the Exchange Rate and the
Optional Conversion Rate shall be adjusted so that the Exchange Rate
and the Optional Conversion Rate shall equal the rate determined by
dividing the Exchange Rate and the Optional Conversion Rate,
respectively, immediately prior to the close of business on the date of
the Expiration Time by a fraction (1) the numerator of which shall be
equal to (x) the product of (i) the Current Market Price per share of
the Common Stock on the date of the Expiration Time and (ii) the number
of shares of Common Stock outstanding (including any tendered shares)
on the Expiration Time less (y) the amount of cash plus the fair market
value (determined as aforesaid) of the aggregate non-cash consideration
payable to stockholders pursuant to such tender or exchange offer, and
(2) the denominator of which shall be equal to the product of (x) the
Current Market Price per share of the Common Stock as of the Expiration
Time and (y) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the
number of all shares accepted for payment pursuant to such tender or
exchange offer.
(g) Any shares of Common Stock issuable in payment of a
dividend or other distribution shall be deemed to have been issued
immediately prior to the close of business on the record date for such
dividend or other distribution for purposes of calculating the number
of outstanding shares of Common Stock under Section 6(iii)(b) above.
(h) Anything in this Section 6 notwithstanding, the
Corporation shall be entitled to make such upward adjustments in the
Exchange Rate and the Optional Conversion Rate, in addition to those
required by this Section 6, as the Corporation in its sole discretion
shall determine to be advisable.
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(i) In any case in which this Section 6(iii) shall require
that an adjustment as a result of any event become effective at the
opening of business on the business day next following a record date
and the date fixed for conversion pursuant to Section 6(i) occurs after
such record date, but before the occurrence of such event, the
Corporation may in its sole discretion elect to defer the following
until after the occurrence of such event: (1) issuing to the holder of
any shares of Series C Preferred Stock surrendered for conversion the
additional shares of Common Stock issuable upon such conversion over
the shares of Common Stock issuable before giving effect to such
adjustment; and (2) paying to such holder any amount in cash in lieu of
a fractional share of Common Stock pursuant to Section 6(vii).
(j) For purposes hereof, an "adjustment in the Exchange Rate"
means, and shall be implemented by, an adjustment of the nature and
amount specified, effected in the manner specified, in each of the
Upper Exchange Rate, the Middle Exchange Rate and the Lower Exchange
Rate. If an adjustment is made to the Exchange Rate pursuant to this
Section 6(iii), an adjustment shall also be made to the Current Market
Price solely to determine which of clauses (a), (b) or (c) of the
definition of Exchange Rate in Section 6(i) will apply on the Mandatory
Conversion Date. Such adjustment shall be made by multiplying the
Current Market Price by a fraction of which the numerator shall be the
Exchange Rate immediately after such adjustment pursuant to Section
6(iii) and the denominator shall be the Exchange Rate immediately
before such adjustment. All adjustments to the Exchange Rate and the
Optional Conversion Rate shall be calculated to the nearest 1/10,000th
of a share of Common Stock. No adjustment in the Exchange Rate or in
the Optional Conversion Rate shall be required unless such adjustment
would require an increase or decrease of at least one percent in the
Lower Exchange Rate; provided, however, any adjustments which by reason
of this subparagraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
adjustments to the Exchange Rate and the Optional Conversion Rate shall
be made successively.
(k) Before taking any action that would cause an adjustment
increasing the Exchange Rate or the Optional Conversion Rate such that
the conversion price (for purposes of this Section 6(iii), an amount
equal to the liquidation value per share of Series C Preferred Stock
divided by the Optional Conversion Rate, respectively, as in effect
from time to time) would be below the then par value of the Common
Stock, the Corporation will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Corporation may
validly and legally issue fully paid and nonassessable shares of Common
Stock at the Optional Conversion Rate as so adjusted.
(iv) Adjustment for Certain Consolidations or Mergers. In case of any
consolidation or merger to which the Corporation is a party (other than a merger
or consolidation in which the Corporation is the continuing corporation and in
which the Common Stock outstanding immediately prior to the merger or
consolidation remains unchanged), or in case of any sale or transfer to another
corporation of the property of the Corporation as an entirety or substantially
as an entirety, or in case of any statutory exchange of securities with another
corporation (other than in connection with a merger or acquisition), proper
provision shall be made so that each share of the Series C Preferred Stock
shall, after consummation of such transaction, be subject to
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(a) conversion at the option of the holder into the kind and amount of
securities, cash or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into which such
share of the Series C Preferred Stock might have been converted immediately
prior to consummation of such transaction, and (b) conversion on the Mandatory
Conversion Date into the kind and amount of securities, cash or other property
receivable upon consummation of such transaction by a holder of the number of
shares of Common Stock into which such share of the Series C Preferred Stock
would have been converted if the conversion on the Mandatory Conversion Date had
occurred immediately prior to the date of consummation of such transaction,
assuming in each case that such holder of Common Stock failed to exercise rights
of election, if any, as to the kind or amount of securities, cash or other
property receivable upon consummation of such transaction (provided that if the
kind or amount of securities, cash or other property receivable upon
consummation of such transaction is not the same for each nonelecting share,
then the kind and amount of securities, cash or other property receivable upon
consummation of such transaction for each nonelecting share shall be deemed to
be the kind and amount so receivable per share by a plurality of the nonelecting
shares). The kind and amount of securities into which the shares of the Series C
Preferred Stock shall be convertible after consummation of such transaction
shall be subject to adjustment as described in Section 6(iii) following the date
of consummation of such transaction. The Corporation may not become a party to
any such transaction unless the terms thereof are consistent with the foregoing.
(v) Notice of Adjustments. Whenever the Exchange Rate and Optional
Conversion Rate are adjusted as provided in Section 6(iii), the Corporation
shall:
(a) Forthwith compute the adjusted Exchange Rate and Optional
Conversion Rate and prepare a certificate signed by the Chief Financial
Officer, any Vice President, the Treasurer and the Controller of the
Corporation setting forth the adjusted Exchange Rate and Optional
Conversion Rate, the method of calculation thereof in reasonable detail
and the facts requiring such adjustment and upon which such adjustment
is based, which certificate shall be prima facie evidence of the
correctness of the adjustment, and file such certificate forthwith with
the Transfer Agent;
(b) Make a prompt public announcement stating that the
Exchange Rate and Optional Conversion Rate have been adjusted and
setting forth the adjusted Exchange Rate and Optional Conversion Rate;
and
(c) Promptly mail a notice stating that the Exchange Rate and
Optional Conversion Rate have been adjusted, the facts requiring such
adjustment and upon which such adjustment is based and setting forth
the adjusted Exchange Rate and Optional Conversion Rate, to the holders
of record of the outstanding shares of the Series C Preferred Stock at
or prior to the time the Corporation mails an interim statement to its
stockholders covering the fiscal quarter period during which the facts
requiring such adjustment occurred but in any event within 45 days of
the end of such fiscal quarter period.
(vi) Notices of Proposed Actions. In case, at any time while any of the
shares of Series C Preferred Stock are outstanding,
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(a) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of profits or
surplus and other than the Rights), or
(b) the Corporation shall authorize the issuance to all
holders of the Common Stock of rights or warrants (other than the
Rights) to subscribe for or purchase shares of the Common Stock or of
any other subscription rights or warrants, or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination thereof) or of any consolidation or merger
to which the Corporation is a party and for which approval of any
stockholders of the Corporation is required (except for a merger of the
Corporation into one of its subsidiaries solely for the purpose of
changing the corporate domicile of the Corporation to another state of
the United States and in connection with which there is no substantive
change in the rights or privileges of any securities of the Corporation
other than changes resulting from differences in the corporate statutes
of the then existing and the new state of domicile), or of the sale or
transfer of all or substantially all of the assets of the Corporation,
then the Corporation shall cause to be filed at each office or agency maintained
for the purpose of conversion of the shares of Series C Preferred Stock, and
shall cause to be mailed to the holders of shares of Series C Preferred Stock at
their last addresses as they shall appear on the stock register, as promptly as
possible, but at least 10 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event that more than one date
is specified), a notice stating (1) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined, or (2) the date on which any such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property (including cash), if any, deliverable
upon such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. The failure to give or receive the notice required by
this Section 6(vi) or any defect therein shall not affect the legality or
validity of any such dividend, distribution, right or warrant or other action.
(vii) No Fractional Shares. No fractional shares of Common Stock shall
be issued upon the conversion of any shares of the Series C Preferred Stock. In
lieu of any fraction of a share of Common Stock which would otherwise be
issuable in respect of the aggregate number of shares of the Series C Preferred
Stock surrendered by the same holder upon Automatic Conversion or Optional
Conversion, such holder shall have the right to receive an amount in cash
(computed to the nearest cent) equal to the same fraction of (a) in the case of
Automatic Conversion, the Current Market Price or (b) in the case of an Optional
Conversion by a holder, the Closing Price of the Common Stock determined as of
the second Trading Day immediately preceding the effective date of conversion.
If more than one share of Series C Preferred Stock shall be surrendered for
conversion at one time by or for the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of the Series C Preferred Stock so surrendered.
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(viii) Treasury Shares. For the purposes of this Section 6, the number
of shares of Common Stock at any time outstanding shall not include shares held
in the treasury of the Corporation but shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of shares of Common Stock. The
Corporation will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Corporation.
(ix) Other Action. If the Corporation shall take any action affecting
the Common Stock, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially adversely affect the
conversion rights of the holders of the shares of Series C Preferred Stock, the
Exchange Rate and/or the Optional Conversion Rate for the Series C Preferred
Stock may be adjusted, to the extent permitted by law, in such manner, if any,
and at such time, as the Board of Directors may determine to be equitable in the
circumstances.
(x) Conversion. The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued shares of Common Stock for the purpose of effecting
conversion of the Series C Preferred Stock, the full number of shares of Common
Stock deliverable upon the conversion of all outstanding shares of Series C
Preferred Stock not theretofore converted. For purposes of this Section 6(x),
the number of shares of Common Stock that shall be deliverable upon the
conversion of all outstanding shares of Series C Preferred Stock shall be
computed as if at the time of computation all such outstanding shares were held
by a single holder.
The Corporation covenants that any shares of Common Stock issued upon
conversion of the Series C Preferred Stock shall be validly issued, fully paid
and non-assessable.
The Corporation shall endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Series C Preferred Stock, prior
to such delivery, upon each national securities exchange, if any, upon which the
outstanding Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities that the Corporation shall be
obligated to deliver upon conversion of the Series C Preferred Stock, the
Corporation shall endeavor to comply with all federal and state laws and
regulations thereunder requiring the registration of such securities with, or
any approval of or consent to the delivery thereof by, any governmental
authority.
(xi) Taxes. The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock or other securities or property on conversion of the
Series C Preferred Stock pursuant thereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in respect
of any transfer involved in the issue or delivery of shares of Common Stock or
other securities or property in a name other than that of the holder of the
Series C Preferred Stock to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Corporation the amount of any such tax or established, to the reasonable
satisfaction of the Corporation, that such tax has been paid.
7. Redemption. The Series C Preferred Stock is not redeemable.
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8. Outstanding Shares. For purposes of this Certificate of
Designations, all shares of Series C Preferred Stock shall be deemed
outstanding, except from the date of registration of transfer, all shares of
Series C Preferred Stock held of record by the Corporation or any subsidiary of
the Corporation.
9. Preemptive Rights. The Series C Preferred Stock is not entitled to
any preemptive or subscription rights in respect of any securities of the
Corporation.
10. Severability of Provisions. Whenever possible, each provision
hereof shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision hereof is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid under
applicable law.
11. Fractional Shares. Series C Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of holders
of Series C Preferred Stock.
12. Reversion to Corporation. Subject to applicable escheat laws, any
monies set aside by the Corporation in respect of any payment with respect to
shares of the Series C Preferred Stock, or dividends thereon, and unclaimed at
the end of two years from the date upon which such payment is due and payable
shall revert to the general funds of the Corporation, after which reversion the
holders of such shares shall look only to the general funds of the Company for
the payment thereof. Any interest accrued on funds so deposited shall be paid to
the Corporation from time to time.
13. Definitions. For purposes of the Series C Preferred Stock, the
following terms shall have the meanings indicated:
"business day" means any day other than a Saturday or Sunday
or any other day on which banks in The City of New York are authorized
or required by law or executive order to close.
"Closing Price" of a share of Common Stock on any date of
determination means the closing sale price (or, if no closing sale
price is reported, the last reported sale price) of such share on the
New York Stock Exchange (the "NYSE") on such date or, if the Common
Stock is not listed for trading on the NYSE on any such date, as
reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if it is
not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if it is not so
reported, the last quoted bid price for the Common Stock in the
over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the
market value of a
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share of Common Stock on such date as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Corporation.
"Current Market Price" per share of the Common Stock means the
average Closing Price per share of the Common Stock of the Company on
the 20 Trading Days immediately prior to, but not including, the
Mandatory Conversion Date or, for purposes of Section 6(iii)(f), the
Expiration Time.
"Fair Market Value" on any day means the average of the daily
Closing Prices of a share of Common Stock of the Company on the five
(5) consecutive Trading Days selected by the Corporation commencing not
more than 20 Trading Days before, and ending not later than, the
earlier of the day in question or the day before the "ex" date with
respect to the issuance or distribution requiring such computation. The
term "ex date," when used with respect to any issuance or distribution,
means the first day on which the Common Stock trades regular way,
without the right to receive such issuance or distribution, on the
exchange or in the market, as the case may be, used to determine that
day's Closing Price.
"Initial Price" means $31.00 per share of Common Stock.
"Rights" means the rights of the Corporation which are
issuable under the Corporation's Rights Agreement, dated January 31,
1996, and as amended from time to time, or rights to purchase any
capital stock of the Corporation under any successor stockholder rights
plan or agreement adopted in replacement of the Corporation's Rights
Agreement.
"Trading Day" means a day on which the Common Stock (a) is not
suspended from trading on any national or regional securities exchange
or association or over-the-counter market at the close of business and
(b) has traded at least once on the national or regional securities
exchange or association or over-the-counter market that is the primary
market for the trading of such security.
"Transfer Agent" means Norwest Bank Minnesota, National
Association and any of its successors and assigns, or such other agent
or agents of the Corporation as may be designated by the Board of
Directors as the transfer agent for the Series C Preferred Stock.
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This Certificate shall be effective as of May 13, 1999.
IN WITNESS WHEREOF, said Apache Corporation has caused this Certificate to be
signed by Raymond Plank, its Chairman and Chief Executive Officer, and attested
by Cheri L. Peper, its Corporate Secretary, this 12th day of May, 1999.
ATTEST: APACHE CORPORATION
- ------------------------------- -------------------------------------------
Name: Cheri L. Peper Name: Raymond Plank
Title: Corporate Secretary Title: Chairman and Chief Executive Officer
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