<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
PETROLITE CORPORATION
---------------------
(Name of Issuer)
CAPITAL STOCK
------------------------------
(Title of Class of Securities)
716723 10 1
--------------
(CUSIP Number)
Boatmen's Trust Company
100 N. Broadway
St. Louis, Missouri 63102
Attention: V. Raymond Stranghoener
(314) 466-3345
-------------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 14, 1994
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the follow box. [X]
Check the following box if a fee is being paid with the statement. [X] (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of equity securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
(Continued on Following Pages)
(Page 1 of 50 Pages)
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities and
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
<PAGE> 2
CUSIP No. 716723 10 1 SCHEDULE 13D Page 2 of 50 Pages
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Boatmen's Bancshares, Inc. 43-0672260
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] (b) [ ] (See Items 3, 4 and 5 below)
3. SEC USE ONLY
4. SOURCE OF FUNDS 00 (See Item 3 below)
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ] [N/A]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri Corporation
NUMBER OF SHARES 7. SOLE VOTING POWER 809,130 shares
BENEFICIALLY 8. SHARED VOTING POWER 5,480,778 shares
(See Item 5 below)
OWNED BY EACH
9. SOLE DISPOSITIVE POWER 696,874 shares
REPORTING
10. SHARED DISPOSITIVE POWER 5,561,648 shares
PERSON WITH (See Item 5 below)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,355,408 shares (See item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ] [N/A]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%
14. TYPE OF REPORTING PERSON
HC
<PAGE> 3
CUSIP No. 716723 10 1 SCHEDULE 13D Page 3 of 50 Pages
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Boatmen's Trust Company 43-0497480
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] (b) [ ] (See Items 3, 4 and 5 below)
3. SEC USE ONLY
4. SOURCE OF FUNDS 00 (See Item 3 below)
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ] [N/A]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri Corporation
NUMBER OF SHARES 7. SOLE VOTING POWER 809,130 shares
BENEFICIALLY 8. SHARED VOTING POWER 5,480,778 shares
(See Item 5 below)
OWNED BY EACH
9. SOLE DISPOSITIVE POWER 696,874 shares
REPORTING
10. SHARED DISPOSITIVE POWER 5,561,648 shares
PERSON WITH (See Item 5 below)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,355,408 shares (See Item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ] [N/A]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%
14. TYPE OF REPORTING PERSON
BK
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CUSIP No. 716723 10 1 SCHEDULE 13D Page 4 of 50 Pages
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wm. S. Barnickel & Company 43-6029518
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] (b) [ ] (See Items 3, 4 and 5 below)
3. SEC USE ONLY
4. SOURCE OF FUNDS 00 (See Item 3 below)
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ] [N/A]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri Corporation
NUMBER OF SHARES 7. SOLE VOTING POWER -0-
BENEFICIALLY 8. SHARED VOTING POWER 5,337,360 shares
(See Item 5 below)
OWNED BY EACH
9. SOLE DISPOSITIVE POWER -0-
REPORTING
10. SHARED DISPOSITIVE POWER 5,337,360 shares
PERSON WITH (See Item 5 below)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,355,408 shares (See item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ] [N/A]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%
14. TYPE OF REPORTING PERSON
CO
<PAGE> 5
CUSIP No. 716723 10 1 SCHEDULE 13D Page 5 of 50 Pages
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The William S. Barnickel Testamentary Trust 43-6029868
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [X] (b) [ ] (See Items 3, 4 and 5 below)
3. SEC USE ONLY
4. SOURCE OF FUNDS 00 (See Item 3 below)
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ] [N/A]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Missouri Trust
NUMBER OF SHARES 7. SOLE VOTING POWER -0-
BENEFICIALLY 8. SHARED VOTING POWER 5,337,360 shares
(See Item 5 below)
OWNED BY EACH
9. SOLE DISPOSITIVE POWER -0-
REPORTING
10. SHARED DISPOSITIVE POWER 5,337,360 shares
PERSON WITH (See Item 5 below)
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,355,408 shares (See item 5 below)
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES [ ] [N/A]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%
14. TYPE OF REPORTING PERSON
OO
<PAGE> 6
CUSIP No. 716723 10 1 SCHEDULE 13D Page 6 of 50 Pages
Item 1. Security and Issuer.
This statement relates to the shares of capital stock, without par
value (the "Capital Stock"), of Petrolite Corporation, a Delaware corporation
(the "Company"). The address of the Company's principal executive office is
369 Marshall Avenue, St. Louis, Missouri 63119.
Item 2. Identity and Background.
This statement is filed on behalf of Boatmen's Bancshares, Inc., a
Missouri corporation ("BBI"); its subsidiary, Boatmen's Trust Company, a
Missouri corporation ("BTC"); Wm. S. Barnickel Company, a Missouri corporation
("Barnickel Company"); and The William S. Barnickel Testamentary Trust, a
Missouri trust (the "Trust"). BBI, BTC, Barnickel Company and the Trust are
hereinafter referred to as the "Reporting Persons."
BBI is a registered bank holding company with its principal executive
office at One Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101. BBI
directly owns substantially all of the capital stock of numerous subsidiary
banks, a trust company, a mortgage banking company, a credit life insurance
company and an insurance agency. The business of BBI consists primarily of the
ownership, supervision and control of its subsidiaries.
BTC is a subsidiary of BBI with its principal executive office at 100
North Broadway, St. Louis, MO 63102. BTC and its affiliated banks' trust
departments with offices in eight states offer investment and trust services to
a broad range of individuals and institutional clients.
Barnickel Company is a Missouri corporation operating as a private
investment company with its office and business address at P.O. Box 190189, St.
Louis, MO 63119. The Trust is a Missouri testamentary trust with its business
address c/o Boatmen's Trust Company, 100 N. Broadway, St. Louis MO 63101. The
co-trustees of the Trust are BTC and Michael V. Janes.
Attached hereto as Schedules I and II is the information required by
Items 2(a) - (c) and 2(f) with respect to (i) each executive officer and
director of BBI and (ii) each executive officer and director of BTC. To the
best of the knowledge of BBI and BTC, no other corporation or other person is
ultimately in control of BBI or BTC.
Attached hereto as Schedule III is the information required by Items
2(a) - (c) and 2(f) with respect to each executive officer and director of
Barnickel Company and Michael V. Janes, the co-trustee of the Trust. To the
best of the knowledge of Barnickel Company, no other corporation or person is
ultimately in control of Barnickel Company other than the Trust. To the best
of the knowledge of the Trust, no other corporation or person is ultimately in
control of the Trust other than its trustees, BTC and Michael V. Janes.
Neither BBI or BTC, nor to the best of their knowledge any person
listed on Schedule I or II hereto, has been, during the last five years, (a)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
<PAGE> 7
CUSIP No. 716723 10 1 SCHEDULE 13D Page 7 of 50 Pages
federal or state securities laws or finding any violations with respect to such
laws.
Neither Barnickel Company nor the Trust, nor to the best of their
knowledge any person listed on Schedule III hereto, has been, during the last
five years, (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violations with respect to
such laws.
This statement is being filed while the Reporting Persons are in the
process of verifying information required herein from the directors and
executive officers of BBI, BTC and Barnickel Company. If the Reporting Persons
obtain information that would cause a change in the information contained in
this statement on Schedule 13D, an amendment to this statement will be filed
which will set forth such change in information.
Item 3. Source and Amount of Funds or Other Consideration.
The Trust was formed in the 1920s pursuant to the Last Will and
Testament of William S. Barnickel dated August 1, 1921 (the "Will"). At the
time of the Will, Barnickel Company was organized in the form of a partnership,
which was incorporated as Barnickel Company in 1922. The assets of the Trust
consist of 90% of the shares of common stock of Barnickel Company. BTC's
predecessor trustee, The Boatmen's National Bank of St. Louis, has served as
co-trustee of the Trust since 1961, and was succeeded by BTC in 1989. BTC also
serves as co-trustee of two other trusts which collectively own the remaining
10% of the shares of common stock of Barnickel Company. The assets of
Barnickel Company include 5,337,360 shares of Capital Stock (or 47.3%) of the
Company.
BTC holds a total of 952,548 other shares of Capital Stock of the
Company in a number of capacities. These shares were acquired with cash, at
then prevailing prices in open market transactions, or as a result of
contributions to trusts or the acceptance of various fiduciary and agency
appointments; these shares have been acquired in the ordinary course of
business and not with the purpose or effect of changing or influencing the
control of the Company, nor in connection with or as a participant in any
transaction having such purpose or effect.
To the best of the knowledge of BBI and BTC, any shares of Capital
Stock acquired by any of their respective directors or executive officers have
been acquired with personal funds for investment purposes only.
To the best of the knowledge of Barnickel Company and the Trust, no
directors or executive officers beneficially own any shares of Capital Stock
other than Michael V. Janes, Genevieve J. Brown, and John C. Sexton. To the
best of the knowledge of Barnickel Company and the Trust, Michael V. Janes
acquired beneficial ownership of (i) 5,337,360 shares as a trustee of the
Trust; (ii) 62,000 shares by purchase with personal funds in the approximate
amount of $108,975.95; (iii) 60,800 shares as trustee of three trusts; and (iv)
3,500 shares by purchase with personal funds. All purchases were market
<PAGE> 8
CUSIP No. 716723 10 1 SCHEDULE 13D Page 8 of 50 Pages
transactions. To the best of the knowledge of Barnickel Company and the Trust,
Genevieve J. Brown acquired beneficial ownership of (i) 6,200 shares as co-
trustee of a revocable trust, which were acquired by purchase by her with
personal funds in open market transactions; (ii) 32,290 shares as co-trustee of
a trust established by her late husband; and (iii) 11,946 shares in an
individual retirement account acquired by inheritance from her late husband.
To the best of the knowledge of Barnickel Company and the Trust, John C. Sexton
acquired beneficial ownership of 100 shares with personal funds in the
approximate amount of $2400.
Item 4. Purpose of Transaction.
BTC's predecessor corporate trustee, The Boatmen's National Bank of
St. Louis, was appointed co-trustee of the Trust in 1961. From that date until
February 14, 1994, BTC or its predecessor has held the shares of Capital Stock
beneficially owned by the Trust in the ordinary course of business. The co-
trustees of the Trust are currently BTC and Michael V. Janes.
The death of Genevieve Barnickel Janes, one of the co-trustees of the
Trust and the income beneficiary of the Trust, on August 27, 1993 resulted in
the termination of the Trust pursuant to its terms. The trustees are analyzing
how to effectuate the termination and under what circumstances the Trust should
distribute the assets of the Trust, consisting principally of shares of common
stock of Barnickel Company, to the beneficiaries of the Trust in view of the
objectives of maximizing liquidity, minimizing taxes and providing for
impartial treatment of the beneficiaries, to the extent practicable. On
February 14, 1994 and at the recommendation of BTC and Michael V. Janes, as
co-trustees of the Trust, the board of directors of Barnickel Company
authorized Barnickel Company to execute a letter agreement with Morgan Stanley
& Co. Incorporated for the purpose of exploring possible transactions involving
Barnickel Company, including a potential sale, merger or reorganization. A
copy of the letter agreement has been filed herewith as Exhibit 4, and is
incorporated herein by reference.
None of the Reporting Persons has formulated any specific plan or
proposal with respect to the shares of capital stock of Barnickel Company or
the Company and there can be no assurance that any such plan or proposal will
be developed or as to the terms or the timing of any such plan or proposal.
Any such plan or proposal that may be formulated could involve simply
distributing the stock of Barnickel Company to the beneficiaries of the Trust,
seeking representation on the Board of Directors of the Company, proposing a
business combination with the Company or a third party, or a sale or other
disposition of any such shares to a third party or in an equity offering, among
other possible transactions, any of which could have the effect of changing or
influencing the control of the Company.
BTC holds a total of 952,548 other shares of Capital Stock of the
Company, as described in Item 3 above. These shares have been acquired in the
ordinary course of business and not with the purpose or effect of changing or
influencing the control of the Company, nor in connection with or as a
participant in any transaction having such purpose or effect. In its capacity
as trustee of certain employee benefit plans of the Company, BTC anticipates
that it will continue to purchase or sell shares of Capital Stock of the
Company in the open market or otherwise or distribute shares to plan
participants. Similarly, in its fiduciary capacity as trustee of individual
<PAGE> 9
CUSIP No. 716723 10 1 SCHEDULE 13D Page 9 of 50 Pages
and other trusts, it anticipates that it may become the beneficial owner of
other shares of Capital Stock of the Company, and may purchase or sell other
shares of Capital Stock of the Company in the open market or otherwise or
distribute shares to plan participants or beneficiaries.
Other than as indicated above, none of the Reporting Persons has any
present plans or proposals which relate to or would result in any of the
following (although the Reporting Persons reserve the right to develop such
plans or proposals): (i) the acquisition of additional securities of the
Company, or the disposition of securities of the Company; (ii) an extraordinary
corporate transaction such as a merger, reorganization or liquidation involving
the Company or any of its subsidiaries; (iii) a sale or transfer of a material
amount of assets of the Company or any of its subsidiaries; (iv) any change in
the present Board of Directors or management of the Company, including any
plans or proposals to change the number or term of directors or to fill any
existing vacancies on the Company's Board of Directors; (v) any material change
in the present capitalization or dividend policy of the Company; (vi) any other
material change in the Company's business or corporate structure; (vii) any
change in the Company's charter or by-laws or other actions which may impede
the acquisition or control of the Company by any person; (viii) causing a class
of securities of the Company to be delisted from a national securities exchange
or to cease to be authorized to be quoted in an inter-dealer quotation system
of a registered national securities association; (ix) a class of equity
securities of the Company becoming eligible for termination of registration
pursuant to Section 12(g)(4) of the Securities Exchange Act of 1934; or (x) any
action similar to any of those enumerated above.
To the best of the knowledge of BBI and BTC, any shares beneficially
owned by any of the directors or executive officers of BBI or BTC were acquired
for investment purposes only.
To the best of the knowledge of Barnickel Company and the Trust, the
other shares of Capital Stock beneficially owned by John C. Sexton were
acquired for investment purposes only.
Item 5. Interest in Securities of the Issuer.
To the best of the knowledge of BBI and BTC, none of the directors or
executive officers of BBI or BTC beneficially own any shares of Capital Stock
of the Company except as set forth in Schedule IV. To the best of the
knowledge of Barnickel Company and the Trust, none of the directors or
executive officers of Barnickel Company (other than Michael V. Janes, as
discussed below) beneficially own any shares of Capital Stock of the Company
except as set forth in Schedule V.
Set forth below is certain information concerning the interests of BBI
and BTC, and, to the best of the knowledge of the Reporting Persons of any
persons who, together with the Reporting Persons, may constitute a group within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, in
securities of the Company:
(a) The Reporting Persons may be deemed collectively to beneficially
own 6,355,408 shares of Capital Stock, or 56.3% based on the number shares
outstanding on January 7, 1994, by reason of their group status. Independently
of the group, BBI and BTC may be deemed to beneficially own 6,289,908 shares of
<PAGE> 10
CUSIP No. 716723 10 1 SCHEDULE 13D Page 10 of 50 Pages
Capital Stock of the Company, or 55.7% based on the number of shares
outstanding as of January 7, 1994.
A total of 5,337,360 shares of Capital Stock of the Company, or 47.3%
based on the number of shares outstanding as of January 7, 1994, are
beneficially owned by Barnickel Company and the Trust, in their independent
capacities apart from the group. Such shares may also be deemed to be
beneficially owned by the Trust and by BTC and Michael V. Janes, as co-trustees
of the Trust.
A total of 5,463,660 shares of Capital Stock of the Company, or 48.4%
based on the number of shares outstanding as of January 7, 1994, are
beneficially owned by Michael V. Janes, including the shares beneficially owned
by Barnickel Company and the Trust, in his independent capacity, apart from the
group.
Each of the Reporting Persons disclaims group status and beneficial
ownership with respect to the shares of Capital Stock, other than the 5,337,360
shares owned by Barnickel Company, beneficially owned by the other members of
the group.
(b) BBI and BTC have sole voting power over 809,130 shares; shared
voting power over 5,480,778 shares; sole dispositive power over 696,874 shares;
and shared dispositive power over 5,561,648 shares.
Barnickel Company may be deemed to have shared voting and dispositive
power over 5,337,360 shares of Capital Stock of the Company; the Trust may be
deemed to have shared voting and dispositive power over such 5,337,360 shares;
BBI, BTC and Michael V. Janes, as co-trustees of the Trust, may be deemed to
have shared voting and dispositive power over such shares.
Michael V. Janes may be deemed to have sole voting and dispositive
power over 62,000 shares and shared voting and dispositive power over 5,401,660
shares (including the shares owned by Barnickel Company).
(c) All transactions in the Capital Stock of the Company that were
effected during the past 60 days by the Reporting Persons are set forth on
Schedule VI hereto and are incorporated herein by reference. To the best of
the knowledge of the Reporting Persons, none of the persons listed on Schedules
I, II or III has effected any transactions in the Capital Stock of the Company
during the past 60 days.
(d) Rights to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, shares of Capital Stock of the Company
are held by other persons with respect to all shares held by the Reporting
Persons. No person is known by the Reporting Persons to have an interest
relating to more than five percent of the outstanding shares of Capital Stock
of the Company, based on the number of shares outstanding as of January 7,
1994, except as follows: Barnickel Company, the Trust and the following
beneficiaries of the Trust: Michael V. Janes, William B. Janes, John V. Janes
and Genevieve J. Brown.
(e) Not applicable.
<PAGE> 11
CUSIP No. 716723 10 1 SCHEDULE 13D Page 11 of 50 Pages
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
BTC is one of two co-trustees of the Trust, which is governed by the
Will, a copy of which has been filed as Exhibit 1 to this Schedule 13D and is
incorporated herein by reference. It is believed by BBI and BTC that, under
applicable law, matters relating to the voting or disposition of securities
held by the Trust generally require the approval of both of the trustees.
The Trust is the beneficial owner of 90% of the common stock of
Barnickel Company. The Restated Articles of Incorporation and By-Laws of
Barnickel Company have been filed as Exhibits 2 and 3, respectively, to this
Schedule 13D, and are incorporated hereby by reference.
As noted in Item 4 above, on February 14, 1994 and at the
recommendation of BTC and Michael V. Janes, as co-trustees of the Trust, the
board of directors of Barnickel Company authorized Barnickel Company to execute
a letter agreement with Morgan Stanley & Co. Incorporated for the purpose of
exploring possible transactions involving Barnickel Company, including a
potential sale, merger or reorganization. A copy of the letter agreement has
been filed herewith as Exhibit 4, and is incorporated herein by reference.
Other shares of Capital Stock held by BTC are voted, held or disposed
of pursuant to the terms of other trust and agency agreements. Currently,
approximately 500,000 shares are held by BTC as trustee of an employee benefit
plan of the Company; BTC has sole voting and dispositive power with respect to
these shares, until termination of employment by participant.
To the best of the knowledge of BBI and BTC, none of the directors or
executive officers of BBI or BTC are parties to any contracts, arrangement,
understandings or relationships (legal or otherwise) between such persons and
any person with respect to any securities of the Company, except as follows:
(i) Andrew B. Craig, III, Chairman of the Board, President and Chief Executive
Officer of BBI, is a director of the Company; (ii) Michael V. Janes, co-trustee
of the Trust, is a director and officer of Wm. S. Barnickel & Company and a
director of the Company; additionally, he shares voting and dispostive power
over 60,800 shares as co-trustee with BTC of certain family trusts; (iii)
William E. Maritz, a Director of BBI, is also a director of the Company; and
(iv) V. Raymond Stranghoener, an officer of BTC, is a director of Wm. S.
Barnickel & Company.
To the best of the knowledge of Barnickel Company and the Trust, none
of the directors or executive officers (other than Michael V. Janes, as
described above) is a party to any contracts, arrangement, understandings or
relationships (legal or otherwise) between any person with respect to any
securities of the Company, except as follows: (i) Genevieve J. Brown shares
voting and dispostive power over 38,490 of her shares as co-trustee with BTC of
certain family trusts; (ii) V. Raymond Stranghoener, an officer of BTC, is a
director of Wm. S. Barnickel & Company; (iii) John C. Sexton shares voting and
dispostive power over his shares with his spouse; and (vi) BTC shares voting
and dispositive power over 60,800 shares with Michael V. Janes as co-trustees
of certain family trusts.
<PAGE> 12
CUSIP No. 716723 10 1 SCHEDULE 13D Page 12 of 50 Pages
Item 7. Material to be Filed as Exhibits.
See Index of Exhibits on Page 15.
The undersigned hereby agree that this statement is filed on behalf of
each of the Reporting Persons.
<PAGE> 13
CUSIP No. 716723 10 1 SCHEDULE 13D Page 13 of 50 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
accurate.
BOATMEN'S BANCSHARES, INC.
February 24, 1994
---------------------------------------------
Date
/S/ JOHN PETERS MACCARTHY
---------------------------------------------
Signature
John Peters MacCarthy, Vice Chairman
---------------------------------------------
(Name/Title)
BOATMEN'S TRUST COMPANY
February 24, 1994
---------------------------------------------
Date
/S/ JOHN PETERS MACCARTHY
---------------------------------------------
Signature
John Peters MacCarthy, Chairman of the Board
and Chief Executive Officer
---------------------------------------------
(Name/Title)
WILLIAM S. BARNICKEL TESTAMENTARY TRUST
BY: BOATMEN'S TRUST COMPANY, CO-TRUSTEE
February 24, 1994
---------------------------------------------
Date
/S/ JOHN PETERS MACCARTHY
---------------------------------------------
Signature
John Peters MacCarthy, Chairman of the Board
and Chief Executive Officer
---------------------------------------------
(Name/Title)
<PAGE> 14
CUSIP No. 716723 10 1 SCHEDULE 13D Page 14 of 50 Pages
WM. S. BARNICKEL COMPANY
February 24, 1994
---------------------------------------------
Date
/S/ MICHAEL V. JANES
---------------------------------------------
Signature
Michael V. Janes, President
---------------------------------------------
(Name/Title)
<PAGE> 15
CUSIP No. 716723 10 1 SCHEDULE 13D Page 15 of 50 Pages
INDEX OF SCHEDULES
Schedule I Directors and Executive Officers of BBI
Schedule II Directors and Executive Officers of BTC
Schedule III Directors and Executive Officers of
Barnickel Company
Schedule IV Interest in Securities of the Company of
Directors and Executive Officers of BBI and BTC
Schedule V Interest in Securities of the Company of
Directors and Executive Officers of
Barnickel Company
Schedule VI Transactions During the Past Sixty Days
INDEX OF EXHIBITS
PAGE
Exhibit 1 Last Will and Testament of William S. Barnickel
dated August 1, 1921 25
Exhibit 2 Restated Articles of Incorporation of Wm. S.
Barnickel & Company 28
Exhibit 3 By-Laws of Wm. S. Barnickel & Company 32
Exhibit 4 Engagement Letter and Confidentiality Agreement
between Morgan Stanley & Co. Incorporated and
Wm. S. Barnickel & Company 44
<PAGE> 16
CUSIP No. 716723 10 1 SCHEDULE 13D Page 16 of 50 Pages
SCHEDULE I
Directors and Executive Officers of BBI
Set forth below are the names, residence or business addresses,
principal occupation or employment (together with the name, principal business
and address of the employer, if other than BBI), and citizenship of each of the
directors and executive officers of BBI:
Andrew B. Craig, III, Chairman of the Board, President and Chief
Executive Officer of BBI; One Boatmen's Plaza, 800 Market Street, St. Louis, MO
63101; U.S.A.
Samuel B. Hayes, III, Vice Chairman and Director of BBI; Chairman of
the Board, President and Chief Executive Officer, The Boatmen's National Bank
of St. Louis, One Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101;
U.S.A.
John Peters MacCarthy, Vice Chairman and Director of BBI; Chairman of
the Board and Chief Executive Office of BTC; One Boatmen's Plaza, 800 Market
Street, St. Louis, MO 63101; U.S.A.
Richard L. Battram, Director of BBI; Vice Chairman of the Board of The
May Department Stores Company, a retailer; 611 Olive Street, St. Louis, MO
63101; U.S.A.
B. A. Bridgewater, Jr., Director of BBI; Chairman of the Board,
President and Chief Executive Officer of Brown Group, Inc., a footwear and
specialty retailing company; 8400 Maryland Avenue, St. Louis, MO 63105; U.S.A.
William E. Cornelius, Director of BBI; Chairman of the Board and Chief
Executive Officer of Union Electric Company, an electric utility; 1901
Chouteau, St. Louis MO 63103; U.S.A.
Ilus W. Davis, Director of BBI; Attorney with Armstrong, Teasdale,
Schlafly & Davis, 1700 City Centre Square, 1100 Main Street, Kansas City, MO
64105; U.S.A.
Michael G. Fitt, Director of BBI; Retired Chairman of the Board and
Chief Executive Officer of Employers Reinsurance Corporation, a management
company for a group of insurance companies; 10394 Lake Circle, Olathe, Kansas
66061; U.S.A.
John E. Hayes, Jr., Director of BBI; Chairman of the Board, President
and Chief Executive Officer, Western Resources, Inc., an electric and gas
utility, 518 Kansas Ave., Topeka KS 66612; U.S.A.
Ike Kalangis, Director of BBI; Chairman of the Board, President and
Chief Executive Officer, Boatmen's Sunwest, Inc., a subsidiary of the Company,
303 Roma, N.W., Albequerque, N.M. 87102; U.S.A.
Lee M. Liberman, Director of BBI; Chairman of the Board, Laclede Gas
Company, a gas utility; 720 Olive Street, 15th Floor, St. Louis MO 63101;
U.S.A.
<PAGE> 17
CUSIP No. 716723 10 1 SCHEDULE 13D Page 17 of 50 Pages
William E. Maritz, Director of BBI; Chairman of the Board and Chief
Executive Officer, Maritz Inc., a performance improvement, travel,
communications, business meeting, training and market research company; 1735 N.
Highway Drive, St. Louis MO 63026; U.S.A.
Andrew E. Newman, Director of BBI; Chairman of the Board, Edison
Brothers Stores, Inc., a retail specialty chain stores company; 501 N.
Broadway, St. Louis MO 63102; U.S.A.
Jerry E. Ritter, Director of BBI; Executive Vice President, Chief
Financial Officer and Administrative Officer, Anheuser-Busch Companies, Inc., a
beer brewery, food products and family entertainment company; One Busch Place,
St. Louis MO 63118; U.S.A.
William P. Stiritz, Director of BBI; Chairman of the Board and Chief
Executive Officer, Ralston Purina Company, a food products and processing and
animal foods company; Checkerboard Square, Tower Building 15T, St. Louis MO
63164; U.S.A.
Albert E. Suter, Director of BBI; Senior Vice Chairman of the Board
and Chief Operating Officer, Emerson Electric Co., a manufacturer of electrical
and electronic products; 8000 West Florissant Ave., St. Louis MO 63136; U.S.A.
Dwight D. Sutherland, Director of BBI; Partner, Sutherland Lumber
Company, a retailer of lumber and building materials, 4000 Main Street, Kansas
City, MO 64111; U.S.A.
Theodore C. Wetterau, Director of BBI; Retired Chairman of the Board
and Chief Executive Officer of Wetterau Incorporated, Retired Vice Chairman of
the Board and Director of SuperValu Inc.; Principal, Wetterau Associates, a
private investment company, 1401 South Brentwood Blvd., Suite 760, St. Louis MO
63144; U.S.A.
John M. Brennan, Executive Vice President of BBI; One Boatmen's Plaza,
800 Market Street, St. Louis, MO 63101; U.S.A.
J. Robert Brubaker, Executive Vice President and Senior Operations
Officer of BBI; One Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101;
U.S.A.
Gregory L. Curl, Executive Vice President of BBI; One Boatmen's Plaza,
800 Market Street, St. Louis, MO 63101; U.S.A.
Alfred S. Dominick, Jr., Executive Vice President -- Retail Banking of
BBI; One Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101; U.S.A.
James W. Kienker, Executive Vice President and Chief Financial Officer
of BBI; One Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101; U.S.A.
Phillip E. Peters, Executive Vice President and Chief Investment
Officer of BBI; One Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101;
U.S.A.
Philip N. McCarty, Senior Vice President and Secretary of BBI; One
Boatmen's Plaza, 800 Market Street, St. Louis, MO 63101; U.S.A.
<PAGE> 18
CUSIP No. 716723 10 1 SCHEDULE 13D Page 18 of 50 Pages
SCHEDULE II
Directors and Executive Officers of BTC
Set forth below are the names, residence or business addresses,
principal occupation or employment (together with the name, principal business
and address of the employer, if other than BBI or BTC), and citizenship of each
of the directors and executive officers of BTC:
Howard F. Baer, Director of BTC; Private Investor, 232 N.
Kingshighway, Suite 504, St. Louis MO 63108; U.S.A.
Clarence C. Barksdale, Director of BTC; Vice Chairman, Washington
University, 1130 Hampton Avenue, St. Louis MO 63139; U.S.A.
John B. Biggs, Jr., Director of BTC; Senior Vice President, Brown
Group, Inc., a footwear and specialty retailing company; 8400 Maryland Avenue,
St. Louis, MO 63105; U.S.A.
Gerald D. Blatherwick, Director of BTC; Retired Vice Chairman - Human
Resources and Corporate Communications - Southwestern Bell Corporation, 26
Fordyce Lane, St. Louis MO 63124; U.S.A.
Stephen F. Brauer, Director of BTC; President, Hunter Engineering
Company, an engineering company; 11250 Hunter Drive, Bridgeton, MO 63044;
U.S.A.
Mary Leyhe Burke, Ph.D., Director of BTC; Head of School, Whitfield
School; a private secondary school; 175 South Mason Road, St. Louis MO 63141;
U.S.A.
George K. Conant, Director of BTC; President, Tri-Star Supply Inc.; a
building materials company; 10435 Baur Boulevard, St. Louis MO 63132; U.S.A.
Andrew B. Craig, III, Director of BTC; Chairman, President & Chief
Executive Officer, BBI; U.S.A.
B.B. Culver, Jr., Director of BTC; Private Investor, Room 1030, Pierre
Laclede Building, 7701 Forsyth Boulevard, St. Louis MO 63105; U.S.A.
Donald Danforth, Jr., Director of BTC; Chairman, Vector Corporation,
an equipment manufacturer; 700 Corporate Park Drive, Suite 330, St. Louis MO
63105; U.S.A.
Martin E. Galt, III, Director of BTC; President, BTC; U.S.A.
A. William Hager, Director of BTC; Chairman of the Board, Hager Hinge
Company; a hinge manufacturing company; 139 Victor Street, St. Louis MO 63104;
U.S.A.
Samuel B. Hayes, III, Director of BTC; Vice Chairman of BBI; Chairman
of the Board, President & Chief Executive Officer, The Boatmen's National Bank
of St. Louis, One Boatmen's Plaza, 800 Market Street, St. Louis MO 63101;
U.S.A.
<PAGE> 19
CUSIP No. 716723 10 1 SCHEDULE 13D Page 19 of 50 Pages
Robert E. Kresko, Director of BTC; Retired Partner, Trammell Crowe
Company, a real estate development company; Pierre Laclede Center, 7701 Forsyth
Blvd., Suite 680, St. Louis MO 63105; U.S.A.
John Peters MacCarthy, Chairman and Chief Executive Officer of BTC;
Vice Chairman of BBI; U.S.A.
James S. McDonnell III, Director of BTC; Retired Vice President,
McDonnell Douglas Corporation; 40 Glen Eagles Drive, St. Louis MO 63124; U.S.A.
John B. McKinney, Director of BTC; President & Chief Executive
Officer, Laclede Steel Company; a steel manufacturer; One Metropolitan Square,
15th Floor, St. Louis MO 63102; U.S.A.
Reuben M. Morriss, III, Vice Chairman and Director of BTC; U.S.A.
William C. Nelson, Director of BTC; Chairman, President & Chief
Executive Officer, Boatmen's First National Bank of Kansas City; 10th &
Baltimore, P.O. Box 419038; Kansas City MO 64183; U.S.A.
William A. Peck, M.D., Director of BTC; Executive Vice Chancellor and
Dean, Washington University School of Medicine, 660 South Euclid Avenue, Box
8106, St. Louis MO 63110; U.S.A.
W.R. Persons, Director of BTC; Retired Chairman and Chief Executive
Officer, Emerson Electric Co.; 7811 Carondelet, Suite 201, St. Louis MO 63105;
U.S.A.
Jerry E. Ritter, Director of BTC; Executive Vice President, Chief
Financial Officer and Administrative Officer, Anheuser-Busch Companies, Inc., a
beer brewery, food products and family entertainment company; One Busch Place,
St. Louis MO 63118; U.S.A.
Louis S. Sachs, Director of BTC; Chairman, Sachs Properties, a real
estate development company; P.O. Box 7104; St. Louis MO 63177; U.S.A.
Hugh Scott, III, Director of BTC; Chairman and Chief Executive
Officer, Western Diesel Services, Inc., an industrial company; 101 S. Hanley,
Suite 1910, St. Louis MO 63105; U.S.A.
Richard W. Shomaker, Director of BTC; Consultant, Brown Group, Inc., a
footwear and specialty retailing company; 8400 Maryland Avenue, St. Louis, MO
63105; U.S.A.
Brice R. Smith, Jr., Director of BTC; Chairman of the Board and Chief
Executive Officer, Sverdrup Corporation, an engineering and design company;
13723 Riverport Drive, Maryland Heights MO 63043; U.S.A.
Janet McAfee Weakley, Director of BTC; Chairman and Chief Executive
Officer, Janet McAfee, Inc., a real estate brokerage company, 149 N. Meramec
Ave., St. Louis MO 63105; U.S.A.
Gordon E. Wells, Director of BTC; Retired Chairman of the Board,
Boatmen's First National Bank of Kansas City; 3121 West 67th Terrace, Shawnee
Mission, Kansas 66208; U.S.A.
<PAGE> 20
CUSIP No. 716723 10 1 SCHEDULE 13D Page 20 of 50 Pages
Eugene F. Williams, Director of BTC; Retired Chairman of the Board of
Centerre Trust Company of St. Louis; 515 Olive Street, Suite 1505, St. Louis MO
63101; U.S.A.
<PAGE> 21
CUSIP No. 716723 10 1 SCHEDULE 13D Page 21 of 50 Pages
SCHEDULE III
Directors and Executive Officers of Barnickel Company
Set forth below are the names, residence or business addresses,
principal occupation or employment (together with the name, principal business
and address of the employer), and citizenship of each of the directors and
executive officers of Barnickel Company:
Genevieve J. Brown, Vice President and Director of Barnickel Company;
Private Investor; 3 Indian Hill, St. Louis, MO 63124; U.S.A.
Michael V. Janes, President, Treasurer and Director of Barnickel
Company; Private Investor; 8000 Bonhomme, St. Louis, MO 63105; U.S.A.
Fairfax F. Pollnow, Director of Barnickel Company; Real Estate
Investor and President, Arbor Land Company; 300 Hunter Ave., Suite 101, St.
Louis, MO 63124; U.S.A.
John C. Sexton, Director of Barnickel Company; President, Gross &
Janes Company, a manufacturer of railroad ties; 511 Rudder Rd., P.O. Box 26113,
Fenton, MO 63026; U.S.A.
V. Raymond Stranghoener, Director of Barnickel Company; Senior Vice
President, General Counsel & Secretary, Boatmen's Trust Company, 100 N.
Broadway, St. Louis, MO 63102; U.S.A.
<PAGE> 22
CUSIP No. 716723 10 1 SCHEDULE 13D Page 22 of 50 Pages
SCHEDULE IV
Interest in Securities of the Company
of Directors and Executive Officers of BBI and BTC
To the best of the knowledge of BBI and BTC, none of the directors or
executive officers of BBI or BTC beneficially own any shares of Capital Stock
of the Company except as set forth below:
Name Sole Voting Shared Voting Sole Shared
Power Power Dispositive Dispositive
Power Power
- -------------------- ------------- -------------- ------------- -----------
Andrew B. Craig III 3,000* -- 3,000* --
William E. Maritz 3,000* -- 3,000* --
* Includes 2,000 shares deemed to be beneficially owned pursuant to stock
options that are presently exercisable.
<PAGE> 23
CUSIP No. 716723 10 1 SCHEDULE 13D Page 23 of 50 Pages
SCHEDULE V
Interest in Securities of the Company
of Directors and Executive Officers of Barnickel Company
To the best of the knowledge of Barnickel Company and the Trust, none
of the directors or executive officers of Barnickel Company (other than Michael
V. Janes, as discussed in Item 5 above) beneficially own any shares of Capital
Stock of the Company except as set forth below:
Name Sole Voting Shared Voting Sole Shared
Power Power Dispositive Dispositive
Power Power
- -------------------- ------------- -------------- ------------- -----------
Genevieve J. Brown 11,946 38,490 11,946 38,490
John C. Sexton -- 100 -- 100
<PAGE> 24
CUSIP No. 716723 10 1 SCHEDULE 13D Page 24 of 50 Pages
SCHEDULE VI
Transactions During the Past Sixty Days
Identity of Date of Number of Price Per Description of
Person Transaction Shares Share Transaction
- -------------------- ------------ --------- --------- ---------------------
BTC, as trustee of
private individual
trust 2/14/94 125 $32.00 Open Market Sale
BTC, as trustee of
employee benefit
plan 1/18/94 1,742 $33.00 Open Market Sale
BTC, as trustee of
employee benefit
plan 1/14/94 1,500 $33.25 Open Market Sale
BTC, as trustee of
employee benefit
plan 1/14/94 2,000 $33.875 Open Market Sale
BTC, as trustee of
employee benefit
plan 12/15/93 1,576 $33.00 Open Market Purchase
BTC, as trustee of
private individual
trust 1/27/94 1,200 N/A Appointed as
Co-Trustee
<PAGE> 1
EXHIBIT 1
Last Will and Testament of William S. Barnickel.
St. Louis, Mo. Aug. 1, 1921.
I, the undersigned William S. Barnickel of the City of St.
Louis, State of Missouri, make this my last will and testament.
I appoint Sears Lehmann, John S. Lehmann and Frederick W.
Lehmann, Jr., or the survivor or survivors, executors and trustees of my
estate, and direct that they furnish a $100,000 bond.
I leave all of my property both real and personal wherever
situated to my trustees, in trust for the following purposes.
One third (1/3) of the income from said estate is to be paid
to my daughter Genevieve Barnickel during her life.
One sixth (1/6) of the income from said estate is to be paid
to my sister Mrs. Della Barnickel Singer during her life.
One sixth (1/6) of the income from said estate is to be paid
to my sister Mrs. Leonora Barnickel Tucker during her life.
One third (1/3) of the income from said estate to be divided
as follows:
Sears Lehmann 0.15
Frederick W. Lehmann, Jr. 0.15
John S. Lehmann 0.2
Herbert L. Barthels 0.15
Miss Katherine Purcell 0.1
Eugene O. Sanguinet 0.05 Erasure O.K. Wm. S. B.
F. C. Reyburn 0.05
F. L. Kelley 0.05
C. C. Averill 0.05
Bernard Keiser 0.05
or their heirs.
This trust to continue for the same period as the trust of
that portion of my estate willed to my daughter Genevieve, at which time this
interest shall vest absolutely in the foregoing.
In event either or both of my said sisters die before my said
daughter Genevieve Barnickel, the income otherwise payable to said sister or
sisters shall be paid to my said daughter Genevieve Barnickel.
Upon the death of my said daughter Genevieve Barnickel the
income otherwise payable to her shall be paid to her children in equal shares,
until the youngest of said children is twenty one years old, at which time this
trust as to the interest of my said daughter shall cease, and said estate shall
be devided equally among said children, the child or children of any deceased
child to take the share of said deceased child.
In event my daughter Genevieve dies without leaving any
children, or in event all of her children should die without issue before the
termination of this trust as specified in the foregoing paragraph then this
<PAGE> 2
trust as to the interest of my said daughter Genevieve shall cease, and said
estate shall be devided as follows:
Sears Lehmann 0.15
Frederick W. Lehmann 0.15
John S. Lehmann 0.2
Miss Katherine Purcell 0.1
Herbert L. Barthels 0.15
Eugene O. Sanguinet 0.05
F. C. Reyburn 0.05
F. L. Kelley 0.05
C. C. Averill 0.05
Bernard Keiser 0.05
or their heirs.
Upon the death of either or both of my said sisters the one
sixth (1/6) interest left to each of them for life shall be added to and
treated exactly the same as the one third interest of my said daughter
Genevieve Barnickel.
I direct that my executors and trustees shall continue the
business of William S. Barnickel and Company, a partnership in which I have a
nine tenths 9/10 interest and John S. Lehmann has a one tenth (1/10) interest,
which is also our respective interest in the patents issued to and applied for
by me. I also direct that my executors and trustees be authorized to
incorporate said partnership business at their discretion.
In event of the death resignation disqualification or failure
to qualify of any of said executors and trustees the remaining two are
authorized to select a third with the same powers as if appointed by this will.
My executors and trustees are authorized to sell and reinvest
the proceeds of any of the property either real or personal left by me.
In witness whereof I have hereunto set my hand and affixed my
seal this first day of August nineteen hundred and twenty one, in the City of
St. Louis Missouri.
/S/ William S. Barnickel (Seal)
Signed sealed, published and declared by the above named
William S. Barnickel to be his last will and testament in our presence and in
the presence of each one of us and we have at his request and in his presence
and in the presence of each other signed our names hereto as witnesses at the
City of St. Louis Missouri the first day of August 1921.
Helen Kerber
600 Merchants Laclede Bldg)
)
Thos. R. Reyburn )
600 Merchants Laclede Bldg) Witnesses
St. Louis, Mo.
<PAGE> 3
STATE OF MISSOURI, )SS.
CITY OF ST. LOUIS. )
BE IT REMEMBERED, That on this 22nd day of May, A. D. 1923,
before me, the undersigned Clerk of the Probate Court of the City of St. Louis,
personally came Helen Kerber and Thomas R. Reyburn, who being both by me duly
sworn on their oaths, say:
"We saw William S. Barnickel, the testator, subscribe his name
to the annexed instrument in writing, bearing date the 1st day of August, 1921,
and heard him declare the same to be his last Will and Testament; we subscribed
our names thereto as witnesses in the presence and at the request of the said
testator and at the time of the execution of said instrument as aforesaid, and
of our subscribing the same as such witnesses, he, the said testator, was of
sound and disposing mind, to the best of our knowledge and belief."
Helen Kerber
Thos. R. Reyburn
Sworn to and subscribed before me, this 22nd day of May, 1923.
/S/ George Brand, Clerk /S/ By John G. Benda, Deputy Clerk.
STATE OF MISSOURI, )SS.
CITY OF ST. LOUIS. )
I, GEORGE BRAND, Clerk of the Probate Court of the City of St.
Louis, having examined and annexed instrument in writing, together with the
testimony of Helen Kerber and Thomas R. Reyburn, the subscribing witnesses
thereto, do consider the same as duly proved to be the last Will and Testament
of William S. Barnickel, deceased.
IN WITNESS WHEREOF, I hereunto set my hand and affix the seal
of said Court, at office, this 22nd day of May, 1923.
(SEAL)
/S/ George Brand, Clerk.
<PAGE> 1
EXHIBIT 2
RESTATED ARTICLES OF INCORPORATION
OF
WM. S. BARNICKEL & COMPANY
On September 30, 1987, Restated Articles of Incorporation, as set
forth below, were adopted pursuant to Section 351.106(2) R.S.Mo., 1986, as
amended, by action of the shareholders of Wm. S. Barnickel & Company, a
Missouri corporation, upon receiving the affirmative vote of 8800 shares of its
common stock, representing all of the shares of such class outstanding, and all
of the stock entitled to vote. The following Restated Articles of
Incorporation correctly set forth without change the corresponding provisions
of the Articles of Incorporation as theretofore amended and supersede the
original Articles of Incorporation and all amendments thereto.
FIRST: The name of the corporation is Wm. S. Barnickel & Company.
SECOND: The address of its registered office in the State of Missouri
is 369 Marshall Avenue, Webster Groves, Missouri 63119, and the name of its
registered agent at such address is Ellis L. Brown.
THIRD: The aggregate number and class of shares which the Corporation
shall have authority to issue is eighty-eight hundred (8,800) shares of common
stock of a par value of ONE HUNDRED DOLLARS ($100.00) each.
FOURTH: The names and places of residence of the incorporators are:
Name Residence
---- ---------
Thos. R. Reyburn St. Louis, Missouri
Valle Reyburn St. Louis, Missouri
H. Kerber St. Louis, Missouri
FIFTH: The number of directors is five (5); provided, that the number
of directors shall be fixed by, or in the manner provided in, the By-laws of
the Corporation; provided further, however, that in no event shall the number
of directors be so fixed at less than three (3) without amendment of these
Articles of Incorporation. Any change in the number of directors shall be
reported to the Secretary of State within thirty (30) calendar days of such
change.
SIXTH: The duration of the corporation is perpetual.
SEVENTH: The corporation is formed for the following purposes:
1. To purchase, subscribe for or otherwise acquire and own, hold as
an investment or otherwise, use, sell, assign, deal in, transfer,
mortgage, pledge, exchange or otherwise dispose of, alone or in
syndicates or otherwise in conjunction with others, shares of
capital stock, bonds debentures, notes, evidences of indebtedness
and other securities, contracts or obligations of any corporation,
association, partnership, entity, or governmental, municipal or
public authority, domestic or foreign, and to pay therefor in
whole or in part, in cash or by exchanging therefor shares of the
capital stock, bonds, debentures, debenture stock, notes or other
obligations of this corporation or any other corporation, and
<PAGE> 2
while the owner or holder of any such property to receive, collect
and dispose of the interest, dividends and income arising from
such property, and to possess and exercise in respect thereof all
the rights, powers and privileges of ownership, including all
voting powers of any securities so owned;
2. To purchase or otherwise acquire the whole or any part of the
property, assets, business, good-will or rights and to undertake
or assume the whole or any part of the bonds, mortgages,
franchises, leases, contracts, indebtedness, guaranties,
liabilities and obligations of any person, firm, association,
corporation or organization, and to pay for the same or any part
or combination thereof in cash, shares of the capital stock,
bonds, debentures, debenture stock, notes, and other obligations
of this corporation or otherwise or by undertaking and assuming
the whole or any part of the liabilities or obligations of the
transferor; and to hold or in any manner dispose of the whole or
any part of the property and assets so acquired or purchased, and
to conduct in any lawful manner the whole or any part of the
business so acquired and to exercise all the powers necessary or
convenient in and about the conduct, management and carrying on of
such business;
3. To purchase or otherwise acquire, hold, sell, pledge, transfer or
otherwise dispose of, and to reissue or cancel the shares of its
own capital stock or any securities or other obligations of this
corporation;
4. To promote or assist financially, by loan, subsidy, guaranty,
contribution to capital or surplus, or otherwise, corporations,
syndicates, partnerships, individuals or associations of all
kinds, foreign or domestic, and in connection therewith to execute
mortgages, deeds of trust, other forms of encumbrances, contracts
and other types of written instruments;
5. To purchase or otherwise acquire and own, hold, lease, develop,
sell, exchange, or otherwise use, deal in or dispose of, mortgage
or otherwise encumber, real property or any interest therein, and
to purchase or otherwise acquire and own, hold, build, construct,
erect, manage, operate, repair, restore, and to dispose of by
sale, lease, mortgage or otherwise, buildings and structures of
all types;
6. To purchase or otherwise acquire and own, hold, lease, sell, or
otherwise use, deal in or dispose of, mortgage or otherwise
encumber personal property of every kind and description or any
interest therein, and to operate, manage and maintain the same;
7. To acquire, own, hold, buy, sell, transfer and otherwise dispose
of patents and patent rights, trademarks and trade names,
copyrights, licenses, franchises, permits and other evidences of
right;
8. In general to carry on any other lawful business whatsoever in
connection with the foregoing or which is calculated, directly or
indirectly, to promote the interest of the corporation or to
enhance the value of its properties;
<PAGE> 3
9. To have and to exercise all powers necessary or incident to
carrying out its corporate purposes, to exercise all other powers
permitted by law, and to possess and enjoy all rights and powers
which now or at any time hereafter may be granted to or exercised
by a corporation of this character.
EIGHTH: The Board of Directors shall have the power to make, alter,
amend or repeal the By-laws of the corporation from time to time.
NINTH:
1. The corporation shall indemnify each of its Directors, its
President and its Vice Presidents to the full extent specified by
Section 351.355 of the Revised Statutes of Missouri, as amended
from time to time, (the "Indemnification Statute") and, in
addition, shall indemnify each of them against all expenses
(including without limitation all attorneys' fees, judgments,
fines and amounts paid in settlement) incurred by him in
connection with any claim (including without limitation any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and
whether or not by or in the right of any corporation) by reason of
the fact that he is or was serving the corporation or at the
request of the corporation in any of the capacities referred to in
the Indemnification Statute or arising out of his status in any
such capacity, provided that the corporation shall not indemnify
any person from or on account of such person's conduct which was
finally adjudged to have been knowingly fraudulent, deliberately
dishonest or willful misconduct.
2. The corporation may, to such extent as it deems appropriate and as
may be permitted by the Indemnification Statute, indemnify any
other person referred to in the Indemnification Statute against
any such expenses incurred by him in connection with any such
claim by reason of the fact that he is or was serving the
corporation or at the request of the corporation in any such
capacities or arising out of his status in any such capacity.
3. The corporation is authorized to give or supplement any of the
aforesaid indemnifications by By-law, agreement or otherwise and
fund them by insurance to the extent it deems appropriate.
Amounts to be paid under this Article shall be disbursed at such
times and upon such procedures as the corporation shall determine.
All such indemnification shall continue as to any person who has
ceased to serve in any of the aforesaid capacities and shall inure
to the benefit of the heirs, devisees and personal representatives
of such person. Indemnification given under section 1 or given or
supplemented under this section 3 of this Article NINTH shall
survive elimination or modification of this Article with respect
to any such expenses incurred in connection with claims arising
out of acts or omissions occurring prior to such elimination or
modification and persons to whom such indemnification is given
shall be entitled to rely upon such indemnification as a contract
with the corporation.
<PAGE> 4
IN WITNESS WHEREOF, these Restated Articles of Incorporation have been
executed in duplicate on behalf of said corporation this 30th day of September,
1987.
WM. S. BARNICKEL & COMPANY
By: /s/ Ellis L. Brown
-------------------------------------
Ellis L. Brown, President
By: /s/ Raymond R. Hirsch
-------------------------------------
Raymond R. Hirsch, Secretary
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
I, Jeffrey J. Shank, a notary public, do hereby certify that on this
30 day of September, 1987, personally appeared before me Ellis L. Brown and
Raymond R. Hirsch, who, being by me duly sworn, declared that they are,
respectively, the President and Secretary of Wm. S. Barnickel & Company, that
they signed the foregoing document as, respectively, President and Secretary of
the corporation, and that the statements therein contained are true.
/s/ Jeffrey J. Shank
Notary Public
My Commission expires:
<PAGE> 1
EXHIBIT 3
WM. S. BARNICKEL & COMPANY
INCORPORATED UNDER THE LAWS OF MISSOURI
BY-LAWS
JULY 15, 1987
<PAGE> 2
BY-LAWS OF
Wm. S. Barnickel & Company
NAME, LOCATION AND OFFICES
Name.
Section 1:1. The name of the Corporation (herein sometimes called the
"Company") shall be as stated in the Articles of Incorporation, as amended from
time to time. At the date of adoption of these By-laws the name is Wm. S.
Barnickel & Company.
Principal Office.
Section 1:2. The Company is incorporated in the State of Missouri. Its
principal (i.e., registered) office shall be at such place as the Board of
Directors may from time to time determine, but until a change is effected, such
principal office shall be at: 369 Marshall Avenue, Webster Groves, Missouri
63119.
Other Offices.
Section 1:3. The Company may also have other offices, in such places (within
or without the state of its incorporation) as the Board of Directors may from
time to time determine.
SHAREHOLDERS
Annual Meeting.
Section 2:1. The annual meeting of the shareholders of the Company for the
purpose of electing directors and for the transaction of such other business as
may be brought before the meeting, commencing in 1987 shall be held at 11:30
a.m. of the standard of time then prevailing at the place where the meeting is
to be held, on the second Wednesday of December of each year if not a legal
holiday, and if a legal holiday, then on the next succeeding day not a legal
holiday.
Special Meetings.
Section 2:2. At any time the President may, and either the President or
Secretary, at the written request of a majority of the members of the Board of
Directors, or at the written request of holders of not less than twenty percent
(20%) of all the outstanding shares entitled to vote, shall issue a call for a
special meeting of the shareholders. Such request shall state the purpose or
purposes of the proposed meeting, and at such special meeting only such matters
as may be specified in the call therefor shall be considered.
Place of Meetings.
Section 2:3. All meetings of the shareholders shall be held at the principal
office of the Company, or at such other place within or without the state of
its incorporation as the Board of Directors may designate.
<PAGE> 3
Notice of Meetings.
Section 2:4. Unless waived, as elsewhere provided in the By-laws, and except
as otherwise provided by law, written or printed notice of each meeting of the
shareholders stating the place, day and hour of the meeting, and, in the case
of a special meeting or where otherwise required by law, the purpose or
purposes for which the meeting is called, shall be mailed with postage prepaid
not less than ten (10) or more than fifty (50) days before the date of the
meeting to each shareholder entitled to vote at such meeting, at the
shareholder's address as it appears on the records of the Company.
Quorum.
Section 2:5. The holders of a majority of the outstanding shares entitled at
the time to vote thereat, when present either in person or by proxy at any
meeting of the shareholders, shall constitute a quorum for the transaction of
business, except as otherwise provided by law, the Articles of Incorporation or
By-laws; but in the absence of such a quorum, the holders of a majority of the
shares represented at the meeting shall have the right successively to adjourn
the meeting to a specified date not longer than ninety (90) days after such
adjournment, without any notice otherwise than by announcement at such meeting,
and at such adjourned meeting, at which a quorum shall attend, all business may
be transacted which might have been transacted at the meeting as regularly
called; provided, that at such adjourned meeting no person not entitled to vote
at the time the meeting was originally called for shall be permitted to vote.
Every decision by a majority of such quorum shall be valid as an act of the
Company unless a larger vote is required by law, the Articles of Incorporation
or the By-laws.
Organization.
Section 2:6. The President, or in the President's absence, the Vice President,
or in the Vice President's absence, the Secretary, or in their absence, any
other officer (in order of seniority of age), shall call meetings of
shareholders to order and act as Chairman thereof. In case neither the
President nor the Vice President nor the Secretary is present, the shareholders
present may elect a Chairman of such meeting.
Section 2:7. The Secretary of the Company shall act as Secretary of all
meetings of the shareholders. In the Secretary's absence, or in the event the
Secretary shall be acting as Chairman, the Chairman may appoint any person to
act as Secretary.
Voting.
Section 2:8. At each meeting of the shareholders, every shareholder holding
shares entitled to vote thereat may vote in person or by proxy appointed by an
instrument in writing subscribed by such shareholder or the shareholder's duly
authorized attorney (provided that such instrument shall designate the person
authorized to cast such vote and specify the meeting or meetings at which such
vote shall be cast, and shall be delivered to the Secretary of the meeting),
and the shareholder shall have one (1) vote for each share of such stock
standing in the shareholder's name on the books of the Company at the time
fixed by law or pursuant to the By-laws for the determination of the right to
vote thereat, except that in the election of directors, shares shall be voted
cumulatively if cumulative voting is required under the provisions of Section
3:3 hereof.
<PAGE> 4
Section 2:9. Voting for directors shall be by ballot unless all shareholders
present in person or by proxy agree upon the directors to be chosen. Upon the
demand of any shareholder or a shareholder's proxy present at the meeting,
voting upon any question shall be by ballot.
Section 2:10. Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the By-laws of such
corporation may prescribe, or, in the absence of such provision, as the Board
of Directors of such corporation shall determine. Shares standing in the name
of a deceased person may be voted by the personal representative of the
decedent's estate, either in person or by proxy, and shares standing in the
name of a guardian, curator or trustee, in whose name such shares are
registered, may be voted by such fiduciary, either in person or by proxy. A
shareholder whose shares are pledged shall be entitled to vote such shares
until such shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 2:11. At least ten (10) days before each meeting of the shareholders,
the Secretary shall prepare a complete list of shareholders entitled to vote at
such meeting, arranged in alphabetical order with the address of and the number
of shares held by each, which list shall be kept at the principal office of the
Company and open to inspection by any shareholder during usual business hours.
Such list shall also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any shareholder during the
whole time of the meeting. Failure to comply with the requirements of this
Section shall not affect the validity of any action taken at such meeting.
Section 2:12. Prior to or at any meeting, but subsequent to the time fixed by
law or pursuant to the By-laws for the determination of the right to vote
thereat, any proxy may submit his power(s) of attorney to the Secretary or to
the Treasurer for examination. The certificate of the Secretary or of the
Treasurer as to the regularity of such power(s) of attorney and as to the
number of shares held by the person(s) who (severally and respectively)
executed such power(s) of attorney, shall be received as prima facie evidence
of the number of shares represented by the holder of such power(s) of attorney
for the purpose of establishing the presence of a quorum at such meeting, and
of organizing the same, and for all other purposes.
Inspectors of Election.
Section 2:13. At each meeting of the shareholders, the polls shall be opened
and closed, the proxies and ballots shall be received and be taken in charge,
and all questions touching the qualification of voters and the validity of
proxies and the acceptance or rejection of votes shall be decided by the
Chairman and Secretary of the meeting as judges of election; provided, however,
that upon request of any shareholder, but not otherwise, the Chairman of the
meeting shall appoint no fewer than two (2) persons who are not directors as
inspectors to receive and canvass the votes given at such meeting and certify
the result to the Chairman. Any such inspector, before assuming the duties of
the office, shall take and subscribe the following oath before any officer
authorized by law to administer oaths: "I do solemnly swear that I will execute
the duties of an inspector of the election now to be held with strict
impartiality, and according to the best of my ability." In all cases where the
right to vote upon any share or shares shall be questioned, it shall be the
duty of the inspectors, if any, or the persons conducting the vote, to require
the transfer books of the Company as evidence of shares held, and all shares of
voting stock that may appear standing thereon in the name of any person or
<PAGE> 5
persons shall be entitled to be voted upon by such person or persons, directly
or by proxy.
DIRECTORS
General Powers.
Section 3:1. The business and property of this Corporation shall be managed
and controlled by its Board of Directors. The Board may exercise all such
powers of the Company and do all lawful acts and things as are not by law, the
Articles of Incorporation, or the By-laws directed or required to be exercised
or done by the shareholders or some particular officer of the Company.
Number and Qualification.
Section 3:2. Unless otherwise provided in the Articles of Incorporation as
amended from time to time, the number of directors shall be five (5).
Directors need not be shareholders unless the Articles of Incorporation, as
amended, shall require that directors be shareholders, in which case any
director who shall cease to be a shareholder of record shall thereby be
disqualified and his or her office as director shall thereupon automatically
become vacant. At least one of the directors shall be a bona fide citizen and
resident of the state of incorporation unless there shall be no such
requirement in the laws of such state or in the Articles of Incorporation, as
amended.
Election.
Section 3:3. The directors shall be elected at the annual meeting of
shareholders by the holders of shares entitled to vote. If cumulative voting
for directors is provided for in the Company's Articles of Incorporation or
required by the laws of the state of incorporation, in all elections for
directors each such shareholder shall have the right to cast as many votes in
the aggregate as shall equal the number of shares held by such shareholder,
multiplied by the number of directors to be elected at such election, and each
shareholder may cast the whole number of such shareholder's votes, either in
person or by proxy, for one candidate, or may distribute them among two or more
candidates.
Term of Office.
Section 3:4. Each director shall serve for a term of one (1) year continuing
until the next annual meeting of shareholders and until his or her successor
shall have been elected and qualified.
Vacancies and Increases.
Section 3:5. In case of any vacancy in the Board of Directors, a majority of
the survivors or remaining directors (though less than a quorum of the Board of
Directors) may fill such vacancy or vacancies until a successor or successors
are elected at the shareholders' meeting.
Meetings.
Section 3:6. The Board of Directors may hold its meetings in the City of St.
Louis, Missouri, and at such other place or places within or without the state
of incorporation as it may from time to time determine.
<PAGE> 6
Section 3:7. Organization meetings shall be held immediately after each annual
meeting of the shareholders, and at the same place. No notice shall be
required for any organization meeting.
Section 3:8. The Board of Directors may from time to time, by resolution,
provide for regular meetings. No such resolution shall be effective unless
adopted at a meeting held pursuant to notice that such resolution will be
considered thereat. Regular meetings of the Board of Directors may be held
without notice, at such time and place (within or without the city or county in
which the Company's principal office is located) as shall from time to time be
determined by the Board of Directors, but in the absence of such determination
at the principal office of the Company.
Section 3:9. Special meetings of the Board of Directors may be called by the
Chairman of the Board, if there be one, the President or any two (2) directors,
and shall be held at the time and place (within or without the Company's state
of incorporation) specified in the call. Each director shall furnish to the
Secretary the address to which notices of special meetings may be sent. Notice
of the time, place and purpose of each special meeting shall be sent to each
director at the address so furnished or, if a director has not so furnished an
address, then c/o General Delivery, St. Louis, Missouri, and such notice,
unless waived as hereafter provided, shall be sent, if by mail, at least two
(2) days before such meeting.
Quorum.
Section 3:10. Except as otherwise provided by law or by the By-laws, a
majority of the full Board of Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
a meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, a majority of only one present, or the
Secretary, if there be no director present, may adjourn the meeting from time
to time until a quorum be had. No notice other than announcement at the
meeting need be given of such adjournment.
Compensation.
Section 3:11. Each director shall be entitled to receive such transportation
and other expenses incident to his attendance at any meeting of the Board of
Directors or of any committee thereof of which he may be a member, and, in
addition, such compensation for attendance at each meeting as the Board of
Directors may from time to time determine.
Indemnification.
Section 3:12. The Company shall indemnify and hold harmless each person who
shall serve at any time hereafter as a director or officer of the Company from
and against any and all claims and liabilities to which such person have become
subject by reason of such person's having heretofore or hereafter been a
director or officer of the Company, or by reason of any action alleged to have
been heretofore or hereafter taken or omitted by such person as such director
of officer, and shall reimburse each such person for all legal and other
expenses reasonably incurred by him or her in connection with any such claim or
liability; provided, however, that no such person shall be indemnified against,
or be reimbursed for, any expense incurred in connection with any claim or
liability arising out of such person's own negligence or willful misconduct.
The foregoing right of indemnification shall not be exclusive of other rights
<PAGE> 7
to which such person may be entitled, including, but not limited to those
provided for in the Company's Articles of Incorporation, as amended.
OFFICERS
Principal Executive Officers.
Section 4:1. The Company shall have a President and a Secretary as its
Principal Executive Officers, and such other officers as may be required by
applicable law.
Other Officers.
Section 4:2. The Board of Directors may appoint such other officers,
committees or agents as it may deem necessary (including, but not by way of
limitation of the generality of the foregoing, an Executive Committee, Chairman
of the Board, one or more Vice Presidents, a Treasurer, one or more Assistant
Treasurers, and one or more Assistant Secretaries), each of whom shall hold
office for such period, have such authority, and perform such duties as are
provided in the By-laws or as the Board of Directors may from time to time
determine. Any two or more offices may be held by the same person.
Appointment, Term of Office and Compensation.
Section 4:3. The officers of the Company shall be appointed and their
compensation shall be fixed by the Board of Directors, but they shall hold
office only during the pleasure of the Board. The Board of Directors may
delegate to any officer or committee the power to appoint and fix the
compensation, term, authorities and duties of officers (other than Principal
Executive Officers), committees or agents.
Powers and Duties of Officers.
Section 4:4. In General. The officers of the Company shall in general have
the powers and perform the duties usually incident to such offices and any
other powers and duties designated by the Board of Directors or set forth in
these By-laws.
Section 4:5. Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the Board of Directors at which he may be present, and shall
at all times be available to the President for consultation and advice in the
supervision and direction of the business of the Company and for the
performance of such other duties as may be assigned to the Chairman by the
Board of Directors.
Section 4:6. President. The President shall preside at all meetings of the
shareholders, and at meetings of the Board of Directors when no Chairman of the
Board has been appointed, or, if appointed, when such Chairman is absent.
Subject to the approval or consent of the Board of Directors, the President
shall have general charge of the business of the Company. The President shall
keep the Board of Directors fully informed and shall freely consult them
concerning the business of the Company. The President may sign and execute all
authorized bonds, contracts or other obligations in the name of the Company.
Unless otherwise ordered by the Board of Directors, the President shall have
full power and authority on behalf of the Company to attend and to act and to
vote at any meetings of the shareholders of any corporation in which the
Company may hold stock, and at any such meeting shall possess and may exercise
<PAGE> 8
any and all the rights and powers incident to the ownership of such stock and
which, as the owner thereof, the Company might otherwise have possessed and
exercised if present. The President shall do and perform such other duties as
from time to time may be assigned to him by the Board of Directors or the By-
laws.
Section 4:7. Vice President. Each Vice President shall have such powers and
shall perform such duties as may be assigned to him by the Board of Directors,
the President or the By-laws. In the absence or disability of the President,
or at any time upon the President's request, presidential duties and powers
shall be performed and exercised by the respective Vice Presidents in the order
of priority designated by the Board of Directors, or, in the absence of such
designation, in the order of priority of appointment. Vice Presidents
appointed at the same meeting, unless the Board of Directors shall fix a
different priority, shall be deemed to have been appointed in the order in
which their names are set forth in the motion or motions for their appointment.
Section 4:8. Treasurer. The Treasurer shall have custody of, and be
responsible for, all the funds and securities of the Company, and shall deposit
and withdraw such funds and securities in such banks, trust companies or other
depositories as shall be selected by and in accordance with the resolutions
adopted by the Board of Directors from time to time. The Treasurer shall also
have custody and be responsible for the maintenance of the books and accounts
of the Company. Said books and accounts shall at all reasonable times be open
to the inspection of any director or Principal Executive Officer of the Company
and shall be exhibited by the Treasurer to the other persons lawfully entitled
to inspection thereof, only upon application, at the office of the Company
where the books regularly are located and during business hours. If called
upon so to do, the Treasurer shall render a statement of the condition of the
finances of the Company at all regular meetings of the Board of Directors, and
a full financial report at annual meetings of shareholders. The Treasurer
shall do and perform such other duties as from time to time may be assigned to
him by the Board of Directors or the By-laws, and shall, if so required by the
Board of Directors, give bond for the faithful discharge of his duties, in such
form and amount and with such sureties as the Board of Directors may require.
Section 4:9. Assistant Treasurer. Each Assistant Treasurer shall have such
powers and shall perform such duties as may be assigned to him by the Board of
Directors, the Treasurer or the By-laws. In the absence or disability of the
Treasurer, or at any time upon the Treasurer's request, the Treasurer's duties
and powers shall be performed and exercised by the Assistant Treasurer, or, if
there be more than one Assistant Treasurer, the respective Assistant Treasurers
in the order of priority designated by the Board of Directors, or in the
absence of such designation, in the order of priority of appointment. Each
Assistant Treasurer, if so required by the Board of Directors, shall give bond
for the faithful discharge of his duties in such form and amount and with such
sureties as the Board of Directors, or, in the absence of action by the Board
of Directors, as the Treasurer may require.
Section 4:10. Secretary. The Secretary shall: (a) keep the minutes of all
meetings of the Board of Directors in books provided for that purpose; (b)
attend to the giving and serving of all notices of the Company; (c) sign with
the President, in the name of the Company, all contracts to which the signature
of a Secretary is required and affix the corporate seal of the Company thereto
when necessary; (d) maintain and have charge of the certificate books, transfer
books, stock ledgers, and books in which shall be recorded the number of shares
subscribed, the names of the owners of the shares, the numbers owned by them
<PAGE> 9
respectively, the amount of shares paid and by whom, the transfer of said
shares with the date of transfer, the amount of the Company's assets and
liabilities, and the names and places of residence of the officers of the
Company, and such other books and papers as the Board of Directors may direct,
all of which shall at all reasonable times be open to the examination of any
persons lawfully entitled to inspection thereof, only upon application, at the
office of the Company where the books regularly are located and during business
hours; (e) be able to sign with the President or Vice President all
certificates for shares of the capital stock of the Company; and (f) do and
perform such other duties as from time to time may be assigned to him by the
Board of Directors or the By-laws.
Section 4:11. Assistant Secretary. Each Assistant Secretary shall have such
powers and shall perform such duties as may be assigned to him by the Board
of Directors, the Secretary or the By-laws. In the absence or disability of
the Secretary, or at anytime upon the Secretary's request, the duties and
powers of the Secretary shall be performed and exercised by the Assistant
Secretary, or, if there be more than one Assistant Secretary, the respective
Assistant Secretaries in the order of priority designated by the Board of
Directors, or in the absence of such designation, in the order of priority of
appointment.
Execution of Instruments on Behalf of the Company.
Section 4:12. All bills of exchange, promissory notes, and checks issued,
drawn or made by the Company shall be signed by such officer or officers as the
Board of Directors may from time to time designate therefor; provided, however,
that in the absence of any such designation they may be signed on behalf of the
Company by any two (2) of the following officers: the Chairman of the Board,
the President, the Treasurer and the Secretary. All other contracts or
obligations of the Company shall be executed by such officer or officers as the
Board of Directors may direct, or, in the absence of such direction, by the
President and Secretary. The seal of the Company may be affixed to instruments
executed on behalf of the Company by its proper officers and shall be affixed
to such instruments as the Board of Directors may direct. When affixed, the
seal may be attested by the Secretary or by such other officers as the Board of
Directors may direct.
CAPITAL STOCK AND DIVIDENDS
Certificates of Shares.
Section 5:1. Certificates of shares of the capital stock of the Company shall
be in such form, not inconsistent with the Articles of Incorporation, as shall
be approved by the Board of Directors, and shall be signed by the President or
Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, provided that the signatures of any such officers
thereon may be facsimiles, engraved or printed, if such certificates are signed
by a transfer agent or transfer clerk or by a registrar. The seal of the
Company shall be impressed, by original or by facsimile, printed or engraved,
on all such certificates. In case any such officer who has signed or whose
facsimile signature has been placed upon any such certificate shall have ceased
to be such officer before such certificate is issued, such certificate may
nevertheless be issued by the Company with the same effect as if such officer
had not ceased to be such officer at the date of its issue.
<PAGE> 10
Section 5:2. All certificates shall be numbered as may be required by
resolution of the Board of Directors, and each shall show thereon the name of
the person owning the shares represented thereby, the number of such shares and
the date of issue, which information shall be entered on the Company's books.
Section 5:3. Every certificate surrendered to the Company for transfer or
otherwise in exchange for a new certificate shall be marked "canceled" with
date of cancellation, and no new certificate(s) in lieu thereof shall be issued
until the former certificate(s) for an equivalent number of shares has been
surrendered and canceled.
Transfer of Shares.
Section 5:4. Transfer of shares of the capital stock of the Company shall be
made only on the books of the Company by the holder thereof, in person or by
the shareholder's attorney, upon surrender and cancellation of certificate(s)
for an equivalent number of shares, or upon compliance with the requirements of
Section 5:7 hereof. A person in whose name shares of stock stand on the books
of the Company shall be deemed the owner thereof as regards the Company.
Section 5:5. Any transfer shall be subject to the lien of the Company for any
debt due it by the shareholder.
Regulations for Transfer.
Section 5:6. The Board of Directors shall have power and authority to make
such rules and regulations as it deems expedient concerning the issue, transfer
and registration of certificates for shares of the capital stock of the
Company, and may appoint one or more transfer agents or transfer clerks as
registrars of transfer, and may require all certificates to bear the signature
of a transfer agent or transfer clerk or registrar of transfer.
Lost, Stolen, Destroyed or Mutilated Certificates.
Section 5:7. Upon proof satisfactory to the President and the Secretary that
any certificate for shares of the issued and outstanding capital stock of the
Company has been lost, stolen, destroyed or mutilated, and upon due application
in writing by the person in whose name the same may stand of record on the
books of the Company, or by the legal representative of such person, and the
surrender thereof in the case of a mutilated certificate, or in the case of a
certificate having been lost, stolen or destroyed, the giving of an
indemnifying bond in such form and amount and with such sureties as the Board
of Directors may require, the proper officers of the Company are authorized and
empowered to issue a new certificate or certificates to the owner thereof in
lieu of the certificate that has been lost, stolen, destroyed or mutilated.
Closing of Transfer Books.
Section 5.8. The Board of Directors shall have power to close the transfer
books of the Company for a period not exceeding fifty (50) days preceding the
date of any meeting of shareholders or the date of payment of any dividend or
the date for the allotment of rights or the date when any change or conversion
or exchange of shares shall go into effect, or, in lieu thereof, may fix in
advance a date not exceeding fifty (50) days preceding the date of any meeting
of shareholders or the date for the payment of any dividend or the date for the
allotment of rights or the date when any change or conversion or exchange of
shares shall go into effect, as a record date for the determination of the
<PAGE> 11
shareholders entitled to notice of and to vote at any such meeting and any
adjournment thereof or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of shares, and in such case only shareholders of
record on the date of closing the transfer books or on the record date so fixed
shall be entitled to such notice of and to vote at such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive such
allotment or rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Company after
such date of closing of the transfer books or such record date fixed as
aforesaid. If the Board of Directors shall not have closed the transfer books
or set a record date for the determination of the shareholders entitled to vote
at any meeting, no person shall be admitted to vote directly or by proxy except
those in whose name the shares of the Company shall have stood on the transfer
books at the close of business on the twentieth (20th) day preceding the date
of the meeting; except that, if prior to the meeting written waivers of notice
of the meeting are signed and delivered to the corporation by all of the
shareholders of record at the time the meeting convened, only the shareholders
who are shareholders of record at the time the meeting is convened shall be
entitled to vote at the meeting, and any adjournment of the meeting.
Dividends.
Section 5:9. Subject to any and all limitations upon the payment of the
dividends imposed by law, the Articles of Incorporation or the By-laws, the
Board of Directors, in its discretion, may from time to time declare and cause
to be paid dividends upon the outstanding shares of the capital stock of the
Company in cash, property or shares of the capital stock of the Company.
MISCELLANEOUS
Corporate Seal.
Section 6:1. The Board of Directors shall provide a suitable seal, containing
the name of the Company, which seal shall be in the custody of the Secretary,
and may provide for one or more duplicates thereof to be kept in the custody of
the Treasurer and Assistant Treasurer and/or Assistant Secretary.
Fiscal Year.
Section 6:2. Except as from time to time otherwise provided by the Board of
Directors, the fiscal year of the Company shall end October 31.
Resignations.
Section 6:3 Any director or officer of the Company may resign at any time by
giving written notice to the Chairman of the Board of Directors or to the
Secretary of the Company. Such resignation shall take effect at the date of
the receipt of such notice, or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Waiver.
Section 6:4. Whenever any notice is required to be given by law, the Articles
of Incorporation or the By-laws, a waiver thereof in writing signed by the
<PAGE> 12
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
Presence at a meeting of shareholders or of directors shall constitute a waiver
of notice, except where the presence of any shareholder or director is
specifically stated by such person as being solely for the purpose of objecting
to the transaction of business because the meeting was not lawfully called or
convened.
Books and Records.
Section 6:5. Except as the Board of Directors may from time to time direct, or
as may be required by law, the Company shall keep its books and records at its
principal office.
Amendments.
Section 6:6. The Board of Directors shall have power to make, amend and repeal
the By-laws of the Company by a vote of a majority of all of the directors at
any regular or special meeting of the Board, provided that notice of intention
to make, amend or repeal the By-laws, in whole or in part, shall have been
given at the next preceding meeting; or, without any such notice, by a vote of
two-thirds (2/3) of all of the directors.
<PAGE> 1
EXHIBIT 4
February 7, 1994
PERSONAL AND CONFIDENTIAL
Board of Directors
William S. Barnickel & Company
c/o Boatmen's Trust Company
100 North Broadway
Post Office Box 14737
St. Louis, Missouri
Dear Gentleman:
Pursuant to our recent discussions, I am pleased to confirm the arrangements
under which Morgan Stanley & Co. Incorporated ("Morgan Stanley") is engaged by
William S. Barnickel & Company (the "Company") in connection with possible
transactions involving the Company including a potential sale, merger or
reorganization.
During the term of our engagement we will provide you with financial advice and
assistance in connection with this transaction, including advice and assistance
with respect to defining objectives, performing valuation analysis, and
structuring, planning, and negotiating the transaction.
As you know, our fees for services in connection with a sale transaction depend
on the outcome of the assignment and are designed to reflect our contribution
to a major corporate objective. In the event that the transaction is not
completed, we will charge only an "Advisory Fee" which will reimburse us for
our time and effort expended. Under this arrangement, we keep a record of the
time spent on assignments; this record is the principal basis for judging the
cost of our financial advisory work and the amount of our Advisory Fee. For
this assignment, the Advisory Fee is likely to be between $100,000 and
$150,000. It is our practice to bill time and efforts fees quarterly as they
accrue. We will periodically inform you as charges accumulate and, if it
appears that the above range is being exceeded, we will mutually agree on a
higher Advisory Fee. If the project is terminated prematurely and our efforts
have not warranted the fee suggested by the above range, an appropriately lower
fee will be suggested.
If the sale, merger or reorganization of the Company is accomplished, we will
charge a "Transaction Fee" against which will be credited any Advisory Fee and
the Advisory Fee of $100,000 to be paid by the Trustees of the Barnickel Trust
as stipulated in the agreement dated October 27, 1993. The Transaction Fee is
calculated as a percentage of the transaction's Aggregate Value, subject to the
indicated minimum and maximum fees, as follows:
<PAGE> 2
Aggregate Value Transaction Fee/
of Transaction Fee Percentage
($MM)
--------------- ----------------
180 or less $1.9 million
190 1.02%
200 1.00%
210 0.99%
220 0.98%
230 0.97%
240 or more $2.3 million
For a transaction in which the Aggregate Value is between two values shown in
the above fee schedule, the fee percentage applicable to the transaction is
determined by interpolation from the two nearest fee percentages. "Aggregate
Value" of the transaction shall be the value of the consideration paid for the
Company's common equity (or, in the case of a sale of assets, the consideration
paid for such assets), plus the value of any debt, capital lease, and preferred
stock obligations of the Company assumed, retired, or defeased in connection
with the transaction. Any amounts to be paid by the buyer contingent upon
future events shall be paid when such amounts are distributed to shareholders.
Our total fee in connection with a completed transaction will become payable by
the Company when control of 50% or more of the Company's common stock changes
hands. Nevertheless, our advisory efforts pursuant to this letter will
continue after control is obtained to assist you with a second step merger or
similar transaction.
Upon your request and at no additional expense, we will render a financial
opinion letter in accordance with our customary practice with respect to the
consideration to be received in the transaction. The terms of our opinion and
the nature and scope of any analysis and investigation we undertake in order to
render such opinion shall be such as we consider appropriate in the
circumstances. Any advice or opinions provided by Morgan Stanley may not be
disclosed or referred to publicly or to any third party other than (i) to
shareholders, directors or professional advisors of the Company, (ii) in
connection with any legal or administrative proceeding, (iii) as required by
law or administrative regulations where, with respect to (ii) and (iii), the
Company will make all reasonable efforts to notify Morgan Stanley in advance
and to provide Morgan Stanley with an opportunity to comment on the form and
substance of such disclosure, and (iv) except in accordance with our prior
written consent, which will not be unreasonably withheld.
If an equity offering is required to achieve the liquidity needs of the
Company's shareholders, Morgan Stanley would expect to be retained as lead
manager of the offering, subject to the Company's satisfaction with the
services provided by Morgan Stanley in connection with the transaction
contemplated by this letter and subject to reaching mutual agreement on the
terms and conditions of the offering. Up to $300,000 of the Transaction Fee
would be credited against any fees received by Morgan Stanley for managing this
offering. Please note that nothing in this letter constitutes a commitment to
underwrite any securities or a commitment on the part of the Company to retain
Morgan Stanley; such a commitment would be contained in a definitive and
mutually agreeable underwriting agreement.
<PAGE> 3
In addition to our fee for professional services, reasonable out-of-pocket
expenses will be billed separately as incurred. Generally these represent
travel, document procurement, and delivery and related matters, but will also
include the fees of our attorneys and other professional advisors, approved in
advance by the Company, should their advice be required.
Morgan Stanley will act under this letter agreement as an independent
contractor with duties solely to the Company. Because we will be acting on
your behalf in this capacity, it is our practice to receive indemnification. A
copy of our standard indemnity form is attached to this letter.
Please note that Morgan Stanley is a full service securities firm engaged in
securities trading and brokerage activities, as well as providing investment
banking and financial advisory services. In the ordinary course of our trading
and brokerage activities, Morgan Stanley or its affiliates may at any time hold
long or short positions, and may trade or otherwise effect transactions, for
our own account or the accounts of customers, in debt or equity securities of
the Company, Petrolite, or any other company that may be involved in this
transaction. We recognize our responsibility for compliance with federal
securities laws in connection with any such activities.
Our services hereunder may be terminated with or without cause by you or by us
at any time and without liability or continuing obligation to you or to us
(except for any Advisory Fee earned and expenses incurred by us to the date of
termination and except, in the case of termination by you, for our right to a
Transaction Fee pursuant to this letter for any transactions effected within
two years of such termination) and provided that the indemnity provisions will
remain operative regardless of any such termination.
Morgan Stanley and the Company (on its own behalf and, to the extent permitted
by law, on behalf of its shareholders) each waives any right to trial by jury
in any action, claim, suit or proceeding with respect to Morgan Stanley's
engagement as financial advisor or its role in connection herewith.
If the terms of our engagement, as set forth in this letter, are satisfactory,
kindly sign the enclosed copy of this letter and indemnification form and
return them to us.
We look forward to working with the Company on this very important assignment.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By:__________________________________
Managing Director
Accepted:
William S. Barnickel & Company
By:_____________________________
Title: President
Date: February 14, 1994
Enclosure
<PAGE> 4
February 7, 1994
Board of Directors
William S. Barnickel & Company
c/o Boatmen's Trust Company
100 North Broadway
Post Office Box 14737
St. Louis, Missouri
CONFIDENTIALITY AGREEMENT
Gentlemen:
Morgan Stanley & Co. Incorporated ("Morgan Stanley") has been engaged
by William S. Barnickel & Company (the "Company") to act in an investment
banking capacity on the Company's behalf. In the course of the engagement, the
Company may provide Morgan Stanley with certain information concerning the
Company, its affiliates and subsidiaries as well as information concerning
Petrolite.
As used herein, "Confidential Information" means all data, reports,
interpretations, forecasts and records containing or otherwise reflecting
information and concerning the Company, its affiliates and subsidiaries and
Petrolite, which the Company will provide to us in the course of our engagement
by the Company, together with analyses, compilations, studies or other
documents, whether prepared by us or our agents or attorneys, which contain or
otherwise reflect such information.
In consideration of the Company's providing us with Confidential
Information, by our signature hereto, we agree that all Confidential
Information will be held and treated by us, our agents, attorneys and employees
in confidence and will not, except as hereinafter provided, without the prior
written consent of the Company be disclosed by us or our agents, attorneys, or
employees, in any manner whatsoever, in whole or in part, and will not be used
by us or our agents, attorneys or employees other than in connection with our
engagement by the Company, including but not limited to the conduct of our due
diligence on the Company and Petrolite. Moreover, we further agree (i) to
disclose Confidential Information only to our agents, attorneys and employees
who need to know the Confidential Information for purposes of our engagement by
the Company and who will be advised by us of this agreement and (ii) we will be
satisfied that such agents, attorneys and employees will act in accordance
herewith.
Notwithstanding the foregoing, the following will not constitute
"Confidential Information" for purposes of this agreement:
(A) Information which was already in our possession prior its
receipt from the Company;
(B) Information which is obtained by us from a third person who,
insofar as is known to us, is not prohibited from transmitting
the information to us by a contractual, legal or fiduciary
obligation to the Company; and
<PAGE> 5
(C) Information which is or becomes publicly available through no
fault of Morgan Stanley.
The written Confidential Information, except for that portion of the
Confidential Information that may be found in analyses, compilations, studies
or other documents prepared by us, our agents, attorneys or employees, will be
returned to the Company promptly upon its request. That portion of the
Confidential Information that may be found in analyses, compilation, studies,
or other documents prepared by us, our agents, attorneys or employees, oral
Confidential Information and any written Confidential Information not so
requested and returned will be held by us and kept subject to the terms of this
agreement or destroyed.
In the event that we are requested or required (by interrogatory,
request for information or documents, subpoena, deposition, civil investigative
demand or other process) to disclose (i) any Confidential Information or
(ii) any information relating to our opinion, judgment or recommendations
concerning the Company, its affiliates or subsidiaries or Petrolite as
developed from Confidential Information, it is agreed that we will provide the
Company with prompt notice of any such request or requirement so that the
Company may seek an appropriate protective order or waive our compliance with
the provisions of this agreement. If, failing the entry of a protective order
or the receipt of a waiver hereunder, we are, in the opinion of our counsel,
compelled to disclose Confidential Information, we may disclose that portion of
the Confidential Information which our counsel advises us that we are compelled
to disclose. In any event, we will not oppose action by the Company to obtain
an appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.
<PAGE> 6
This agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made in and to be
performed in that state. If the foregoing reflects our agreement, kindly sign
and return the duplicate copy of this letter to us.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By:__________________________________
Managing Director
Agreed to as of the date set forth above:
William S. Barnickel & Company
By:_____________________________
Title: President
<PAGE> 6
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Gentlemen:
This letter will confirm that we have engaged Morgan Stanley & Co.
Incorporated to advise and assist us in connection with the matters referred to
in our letter agreement dated _____________________ (the "Engagement Letter").
In consideration of your agreement to act on our behalf in connection with such
matters, we agree to indemnify and hold harmless you and your affiliates and
your and their respective officers, directors, employees and agents and each
other person, if any, controlling you or any of your affiliates (you and each
such other person being an "Indemnified Person") from and against any losses,
claims, damages or liabilities related to, arising out of or in connection with
the engagement (the "Engagement") under the Engagement Letter, and will
reimburse each Indemnified Person for all expenses (including reasonable fees
and expenses of counsel) as they are incurred in connection with investigating,
preparing, pursuing or defending any action, claim, suit, investigation or
proceeding related to, arising out of or in connection with the Engagement,
whether or not pending or threatened and whether or not any Indemnified Person
is a party. We will not, however, be responsible for any losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence
of any Indemnified Person or your transactions as broker of dealer in
securities of Petrolite Inc. or any other securities. We also agree that no
Indemnified Person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to us for or in connection with the Engagement
except for any such liability for losses, claims, damages or liabilities
incurred by us that are finally judicially determined to have resulted from the
bad faith or gross negligence of such Indemnified Person or your transactions
as broker of dealer in securities of Petrolite Inc. or any other securities.
We will select counsel reasonably acceptable to the Indemnified
Persons and such counsel may also represent us in the same action, claim or
proceeding unless there are actual or potential differing interests between us
and the Indemnified Persons which would preclude such counsel from representing
all parties.
We will not, without your prior written consent, settle, compromise,
consent to the entry of any judgment in or otherwise seek to terminate any
action, claim, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is a party thereto)
unless such settlement, compromise, consent or termination includes a release
of each Indemnified Person from any liabilities arising out of such action,
claim, suit or proceeding. No Indemnified Person seeking indemnification,
reimbursement or contribution under this agreement will, without our prior
written consent, settle, compromise, consent to the entry of any judgment in or
otherwise seek to terminate any action, claim, suit, investigation or
proceeding referred to in the preceding paragraph.
If the indemnification provided for in the first paragraph of this
agreement is judicially determined to be unavailable (other than in accordance
with the terms hereof) to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to herein, then, in lieu of
indemnifying such Indemnified Person hereunder, we shall contribute to the
<PAGE> 7
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (and expenses relating thereto) (i) in such
proportion as is appropriate to reflect the relative benefits to you, on the
one hand, and us, on the other hand, of the Engagement or (ii) if the
allocation provided by clause (i) above is not available, in such proportion as
is appropriate to reflect not only the relative benefits referred to in such
clause (i) but also the relative fault of each of you and us, as well as any
other relevant equitable considerations; provided, however, in no event shall
your aggregate contribution to the amount paid or payable exceed the aggregate
amount of fees actually received by you under the Engagement Letter. For the
purposes of this agreement, the relative benefits to us and you of the
Engagement shall be deemed to be in the same proportion as (a) the total value
paid or contemplated to be paid or received or contemplated to be received by
us or our stockholders, as the case may be, in the transaction or transactions
that are the subject of the Engagement, whether or not any such transaction is
consummated, bears to (b) the fees paid or to be paid to you under the
Engagement Letter.
The provisions of this agreement shall apply to the Engagement and any
modification thereof and shall remain in full force and effect regardless of
any termination or the completion of your services under the Engagement Letter.
This agreement and the Engagement Letter shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts executed in and to be performed in that state.
Very truly yours,
WILLIAM S. BARNICKEL & COMPANY
By:_________________________________
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By____________________________________
Date: 1/91
