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OMB APPROVAL
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UNITED STATES OMB Number: 3235-0145
SECURITIES AND EXCHANGE COMMISSION Expires: October 31, 1994
WASHINGTON, D.C. 20549 Estimated average burden
hours per form .......14.90
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )*
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Petrolite Corporation
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(Name of Issuer)
Capital Stock
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(Title of Class of Securities)
716723 10 1
------------------------------------
(CUSIP Number)
Jules Chasnoff, 408 Olive St., Suite 405, St. Louis, MO 63102 (314) 241-5950
- ------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
-------------------------------------------------------
(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-I(b)(3) or (4), check the following box / /.
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 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).
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*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 the
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
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).
SEC 1746 (12-91) Page 1 of 10 pages
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CUSIP NO. 716723 10 1 SCHEDULE 13D Page 2 of 10 Pages
--------------- ---- ----
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1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Michael V. Janes
###-##-####
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) /X/
(b) / /
See attached Item 5(b)
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO / /
ITMES 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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7 SOLE VOTING POWER
NUMBER OF 62,000
SHARES -------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 5,401,660
REPORTING -------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
62,000
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10 SHARED DISPOSITIVE POWER
5,401,660
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,355,408 See attached Item 5(a)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
- -----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.3%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE AND THE SIGNATURE ATTESTATION.
<PAGE> 3
CUSIP NO. 716723 10 1 PAGE 3 OF 10 PAGES
ITEM 1. SECURITY AND ISSUER
Capital stock
Petrolite Corporation ("Petrolite"), 369 Marshall Avenue,
St. Louis, MO 63119
ITEM 2. IDENTITY AND BACKGROUND
(a) Michael V. Janes (the "undersigned")
(b) 8000 Bonhomme, Clayton, Missouri 63105
(c) Private investor
(d) No
(e) No
(f) United States of America
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The undersigned acquired beneficial ownership of (i) 5,337,360
shares as a trustee of the William S. Barnickel Trust (the "Barnickel
Trust")(1); (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) 3500 shares by purchase with personal funds.
All purchases were market transactions.
ITEM 4. PURPOSE OF TRANSACTION
The undersigned originally acquired and held these shares in the
ordinary course of business. The death of Genevieve B. Janes on
August 27, 1993 resulted in the termination of the Barnickel Trust in
accordance with its terms. Consequently, the undersigned and BTC as
co-trustees of the Barnickel Trust are analyzing alternative methods to
effectuate the distribution of the assets of the Barnickel Trust to its
beneficiaries in view of the objectives of maximized liquidity,
[FN]
- ------------------
(1)The Barnickel Trust holds, among other things, 90% of the shares
of common stock of Wm. S. Barnickel & Company ("Barnickel Company"),
which owns 5,337,360 shares of the capital stock of Petrolite. The
undersigned and Boatmen's Trust Company ("BTC") are co-trustees of the
Barnickel Trust. The undersigned, Genevieve J. Brown, John Sexton,
V. Raymond Stranghoener and Fairfax F. Pollnow are all of the directors
of Barnickel Company.
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CUSIP NO. 716723 10 1 PAGE 4 OF 10 PAGES
minimized taxes and impartial treatment of beneficiaries.
On February 14, 1994 and at the direction of the undersigned and BTC as
co-trustees of the Barnickel Trust, the board of directors of
Barnickel Company authorized Barnickel Company to execute an engagement
letter with Morgan Stanley & Co. Incorporated ("Morgan Stanley") for
the purpose of exploring possible transactions involving Barnickel
Company, any of which, if undertaken, could have the effect of changing
or influencing the control of Petrolite (Exhibit B is incorporated by
this reference). As of the date of this filing, the undersigned is unable
to anticipate the structure, terms or timing of any such transaction;
however, any such transaction could involve (i) seeking representation
on the board of directors of Barnickel Company; (ii) proposing a business
combination with Barnickel Company or a third party; (iii) selling or
otherwise disposing of these shares to a third party or in an equity
offering; or (iv) other possible alternatives.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The undersigned, Barnickel Company, the Barnickel Trust,
BBI, and BTC may each be deemed to beneficially own the
aggregate number of shares and percentage of the class
reported in rows (11) and (13) of the cover page by
reason of the group status reported in row (2(a)) of the cover
page (rows (11), (13) and (2(a)) of the cover page are
incorporated by reference). Independent of any group, the
undersigned beneficially owns 5,463,660 shares of the capital
stock of Petrolite (the "undersigned's Shares"), which is 48.4%
of such class. In addition, to the best of the undersigned's
knowledge and independent of any group, Barnickel Company, the
Barnickel Trust, BBI and BTC each beneficially own the shares of
the capital stock of Petrolite attributed to them in Schedule A,
which is incorporated by this reference. The
undersigned disclaims group status and beneficial ownership of
any shares other than the undersigned's Shares.
(b) Rows (7) through (10) of the cover page and Schedule A are
incorporated by this reference.
The undersigned shares the power to vote or to direct the
vote or to dispose or direct the disposition of the shares
reported in rows (8) and (10) of the cover page with Barnickel
Company, the Barnickel Trust, BBI and BTC (Schedule B is
incorporated by this reference).
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CUSIP NO. 716723 10 1 PAGE 5 OF 10 PAGES
(c) To the best of the undersigned's knowledge, all transactions
in the capital stock of Petrolite during the past 60 days are
set forth in Schedule C, which is incorporated by reference.
(d) Barnickel Company, the Barnickel Trust, BBI, BTC and other
persons, including the undersigned, William B. Janes, John V.
Janes and Genevieve J. Brown as beneficiaries of the Barnickel
Trust, share the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of,
such securities.
(e) Inapplicable
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
The undersigned believes that any matter relating to the voting
or disposition of the shares reported in rows (8) and (10) of the
cover page requires the approval of the undersigned and BTC (Exhibit
A is incorporated by this reference).
As noted in Item 4 above, on February 14, 1994 and at the
recommendation of the undersigned and BTC as co-trustees of the
Barnickel Trust, the board of directors of Barnickel Company
authorized Barnickel Company to execute an engagement letter
with Morgan Stanley for the purpose of exploring possible transactions
involving Barnickel Company (Exhibit B is incorporated by this
reference).
The Restated Articles of Incorporation and By-Laws of Barnickel
Company control its internal governance, subject to Missouri law
(Exhibits C and D are incorporated by this reference).
The undersigned and BTC share the power to vote or dispose of
60,800 shares of the capital stock of Petrolite as co-trustees of
certain family trusts.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit A Last Will and Testament of William S. Barnickel
dated August 1, 1921
Exhibit B Engagement Letter between Morgan Stanley and
Barnickel Company
Exhibit C Restated Articles of Incorporation of Barnickel Company
Exhibit D By-Laws of Barnickel Company
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CUSIP NO. 716723 10 1 PAGE 6 OF 10 PAGES
SIGNATURE
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 correct.
Date: 2-24-94
---------------------------
By: /s/ MICHAEL V. JANES
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Michael V. Janes,
Individually and as Trustee
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CUSIP NO. 716723 10 1 PAGE 7 OF 10 PAGES
SCHEDULE A
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
With respect to Barnickel Company:
Aggregate number of shares beneficially owned:
5,337,360
Percentage of class of securities beneficially owned:
47.3%
Number of shares as to which there is sole power to vote or
to direct the vote:
0
Number of shares as to which there is shared power to vote or
to direct the vote:
5,337,360
Number of shares as to which there is sole power to dispose
or to direct the disposition:
0
Number of shares as to which there is shared power to dispose
or to direct the disposition:
5,337,360
With respect to the Barnickel Trust:
Aggregate number of shares beneficially owned:
5,337,360
Percentage of class of securities beneficially owned:
47.3%
Number of shares as to which there is sole power to vote
or to direct the vote:
0
Number of shares as to which there is shared power to vote
or to direct the vote:
5,337,360
Number of shares as to which there is sole power to dispose
or to direct the disposition:
0
Number of shares as to which there is shared power to dispose
or to direct the disposition:
5,337,360
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CUSIP NO. 716723 10 1 PAGE 8 OF 10 PAGES
With respect to Boatmen's Bancshares, Inc. ("BBI"):
Aggregate number of shares beneficially owned:
6,289,908
Percentage of class of securities beneficially owned:
55.7%
Number of shares as to which there is sole power to vote
or to direct the vote:
809,130
Number of shares as to which there is shared power to vote
or to direct the vote:
5,480,778
Number of shares as to which there is sole power to dispose
or to direct the disposition:
696,874
Number of shares as to which there is shared power to dispose
or to direct the disposition:
5,561,648
With respect to BTC:
Aggregate number of shares beneficially owned:
6,289,908
Percentage of class of securities beneficially owned:
55.7%
Number of shares as to which there is sole power to vote
or to direct the vote:
809,130
Number of shares as to which there is shared power to vote
or to direct the vote:
5,480,778
Number of shares as to which there is sole power to dispose
or to direct the disposition:
696,874
Number of shares as to which there is shared power to dispose
or to direct the disposition:
5,561,648
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CUSIP NO. 716723 10 1 PAGE 9 OF 10 PAGES
SCHEDULE B
ITEM 2. IDENTITY AND BACKGROUND
With respect to Barnickel Company:
State of organization: Missouri
Principal business: private investment company
Principal business address: P.O. Box 190189, St. Louis,
Missouri 63119
Principal office address: P.O. Box 190189, St. Louis,
Missouri 63119
Item 2(d): No
Item 2(e): No
With respect to the Barnickel Trust:
State of organization: Missouri
Principal business: administration of trust under will
Principal business address: c/o Boatmen's Trust Company,
100 N. Broadway, St. Louis, Missouri 63102
Principal office address: c/o Boatmen's Trust Company,
100 N. Broadway, St. Louis, Missouri 63102
Item 2(d): No
Item 2(e): No
With respect to BBI:
State of organization: Missouri
Principal business: bank holding company
Principal business address: One Boatmen's Plaza, St. Louis,
Missouri 63101
Principal office address: One Boatmen's Plaza, St. Louis,
Missouri 63101
Item 2(d): No
Item 2(e): No
With respect to BTC:
State of organization: Missouri
Principal business: trust company
Principal business address: 100 N. Broadway, St. Louis,
Missouri 63102
Principal office address: 100 N. Broadway, St. Louis,
Missouri 63102
Item 2(d): No
Item 2(e): No
<PAGE> 10
CUSIP NO. 716723 10 1 PAGE 10 OF 10 PAGES
<TABLE>
SCHEDULE C
TRANSACTIONS DURING THE PAST SIXTY DAYS
---------------------------------------
===================================================================================================================================
<CAPTION>
IDENTITY OF DATE OF NUMBER OF PRICE PER DESCRIPTION OF
PERSON TRANSACTION SHARES SHARE TRANSACTION
------------ ----------- --------- ---------- --------------
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
BTC, as trustee 2/14/94 125 $32.00 Open Market Sale
of private
individual trust
- -----------------------------------------------------------------------------------------------------------------------------------
BTC, as trustee 1/18/94 1,742 $33.00 Open Market Sale
of employee
benefit plan
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BTC, as trustee 1/14/94 1,500 $33.25 Open Market Sale
of employee
benefit plan
- ----------------------------------------------------------------------------------------------------------------------------------
BTC, as trustee 1/14/94 2,000 $33.875 Open Market Sale
of employee
benefit plan
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BTC, as trustee 12/15/93 1,576 $33.00 Open Market Purchase
of employee
benefit plan
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BTC, as trustee 1/27/94 1,200 N/A Appointed as Co-trustee
of private
individual trust
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- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
===================================================================================================================================
</TABLE>
<PAGE> 1
EXHIBIT C
CUSIP NO. 716723 10 1 PAGE 1 OF 3 PAGES
RESTATED ARTICLES OF INCORPORATION
OF
WM. S. BARNICKEL & COMPANY
On September 30th, 1987, Restated Articles of Incorporation,
----
as set forth below, were adopted pursuant to Section 351.106(2)
R.S.Mo., 1978, as amended, by action of the shareholders of Wm. S.
Barnickel & Company, a Missouri corporation. 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 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 therefor 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
1
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CUSIP NO. 716723 10 1 PAGE 2 OF 3 PAGES
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;
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
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CUSIP NO. 716723 10 1 PAGE 3 OF 3 PAGES
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.
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 SHANK
------------------------------
Notary Public
My Commission expires:
JEFFREY J. SHANK
NOTARY PUBLIC, STATE OF MISSOURI
MY COMMISSION EXPIRES 4/9/89
ST. LOUIS COUNTY
3
<PAGE> 1
EXHIBIT D
CUSIP NO. 716723 10 1 PAGE 1 OF 14 PAGES
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.
<PAGE> 2
CUSIP NO. 716723 10 1 PAGE 2 OF 14 PAGES
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.
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 meting, 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 then 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.
-2-
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CUSIP NO. 716723 10 1 PAGE 3 OF 14 PAGES
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.
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
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CUSIP NO. 716723 10 1 PAGE 4 OF 14 PAGES
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 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
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CUSIP NO. 716723 10 1 PAGE 5 OF 14 PAGES
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 hold 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
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CUSIP NO. 716723 10 1 PAGE 6 OF 14 PAGES
time determine.
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 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.
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CUSIP NO. 716723 10 1 PAGE 7 OF 14 PAGES
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 or 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 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
Principle 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.
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CUSIP NO. 716723 10 1 PAGE 8 OF 14 PAGES
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 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.
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CUSIP NO. 716723 10 1 PAGE 9 OF 14 PAGES
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 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
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CUSIP NO. 716723 10 1 PAGE 10 OF 14 PAGES
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
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<PAGE> 11
CUSIP NO. 716723 10 1 PAGE 11 OF 14 PAGES
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.
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 thereof. 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.
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CUSIP NO. 716723 10 1 PAGE 12 OF 14 PAGES
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 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 of 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
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<PAGE> 13
CUSIP NO. 716723 10 1 PAGE 13 OF 14 PAGES
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
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
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<PAGE> 14
CUSIP NO. 716723 10 1 PAGE 14 OF 14 PAGES
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.
-14-
<PAGE> 1
EXHIBIT B
CUSIP NO. 716723 10 1 PAGE 1 OF 3 PAGES
MORGAN STANLEY
MORGAN STANLEY & CO.
INCORPORATED
1251 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10020
(212) 703-4000
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.
<PAGE> 2
CUSIP NO. 716723 10 1 PAGE 2 OF 3 PAGES
MORGAN STANLEY
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 $100,000 to be paid by the
Trustees of the Barnickel Trust as stipulated in the agreement dated
October 27, 1993. The Transaction Fee is calculated as a percentage
of the transaction's Aggregate Value, subject to the indicated minimum
and maximum fees, as follows:
<TABLE>
<CAPTION>
AGGREGATE VALUE TRANSACTION FEE/
OF TRANSACTION FEE PERCENTAGE
--------------- ----------------
($MM)
<S> <C>
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
</TABLE>
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 o 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
CUSIP NO. 716723 10 1 PAGE 3 OF 3 PAGES
MORGAN STANLEY
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: /s/ Michael V. Janes
--------------------------
Title: President
-----------------------
Date: February 14, 1994
------------------------
Enclosure
<PAGE> 1
EXHIBIT A
CUSIP NO. 716723 10 1 PAGE 1 OF 3 PAGES
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
F. C. Reyburn 0.05
F. L. Kelley 0.05
C. C. Avarill 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
<PAGE> 2
CUSIP NO. 716723 10 1 PAGE 2 OF 3 PAGES
interest of my said daughter shall cease,
and said estate shall be divided 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 trust as to the interest of my said daughter Genevieve
shall cease, and said estate shall be divided 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. Avarill 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.
William S. Barnickel (Seal)
<PAGE> 3
CUSIP NO. 716723 10 1 PAGE 3 OF 3 PAGES
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 Karbar
600 Merchants Laclede Bldg
Thos. R. Reyburn
600 Merchants Laclede Bldg Witnesses
St. Louis, Mo.
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 Karber 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 Karber
Thos. R. Reyburn
Sworn to and subscribed before me, this 22nd day of May, 1923.
George Brand, Clerk 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 the annexed instrument in writing, together
with the testimony of Helen Karber 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, as office, this 22nd day of May, 1923.
(SEAL)
George Brand, Clerk.
