As filed with the Securities and Exchange Commission on February 14, 1996
Registration No. 33-43443
__________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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REYNOLDS METALS COMPANY
(Exact name of registrant as specified in its charter)
Delaware 54-0355135
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6601 West Broad Street, Richmond, VA 23230
(Address of principal executive offices, including zip code)
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REYNOLDS METALS COMPANY
PERFORMANCE INCENTIVE PLAN
(Full title of plan)
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D. MICHAEL JONES, ESQ., Vice President, General Counsel and Secretary
and
BRENDA A. HART, ESQ., Chief Securities/Finance Counsel and Assistant Secretary
Reynolds Metals Company
6601 West Broad Street, Richmond, VA 23230
(804) 281-2000
(Names, addresses and telephone numbers, including area code,
of agents for service)
CALCULATION OF REGISTRATION FEE
-------------------------------------------------------------------------
Proposed Proposed Amount of
Title of Amount to maximum maximum registration
securities be offering aggregate fee*
to be registered price per offering
registered share* price*
-------------------------------------------------------------------------
Common 100,000 $52.125 $5,212,500 $1,797.41
Stock, shares
without par
value
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*In accordance with Rule 457(h)(1) under the Securities
Act of 1933, the aggregate offering price and registration fee
are computed on the basis of a price per share based, pursuant to
Rule 457(c), on the average of the high and low prices of the
Common Stock as reported on the New York Stock Exchange Composite
Transactions Tape on February 9, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items 1 and 2.
The document(s) containing the information specified in this
Part I will be sent or given to Plan participants eligible to
receive Common Stock under the Plan as specified by Rule
428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission under the Securities Exchange Act of 1934
(the "Exchange Act") are incorporated herein by reference:
(1) The Annual Report of Reynolds Metals Company (the
"Company" or the "Registrant") on Form 10-K for the year ended
December 31, 1994.
(2) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31,
1994.
(3) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A dated
February 23, 1994 pertaining to Common Stock and Preferred Stock
Purchase Rights.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
The consolidated financial statements of the Company
appearing in the Company's Annual Report (Form 10-K) for the year
ended December 31, 1994, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority
of such firm as experts in accounting and auditing.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities being registered hereunder
will be passed upon by D. Michael Jones, Esq., Vice President,
General Counsel and Secretary of the Company. Mr. Jones, in his
capacity as Vice President, General Counsel and Secretary of the
Company, is paid a salary by the Company and is a participant in
various employee benefit plans (including the Plan) offered to
employees of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware empowers the Company to indemnify any person who was or
is a party or is threatened to be made a party to any threatened,
pending, or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of
the Company or is or was serving at the request of the Company as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful, except that, in the
case of an action or suit by or in the right of the Company, no
indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to the Company unless the Court of Chancery or the court
in which such action or suit was brought shall determine that
such person is fairly and reasonably entitled to indemnity for
proper expenses. Article X of the By-Laws of the Company
incorporates substantially the provisions of Section 145 of the
General Corporation Law of the State of Delaware and requires the
Company to indemnify any person to the full extent of its powers
as described above. The Company has entered into indemnification
agreements with each of its directors and officers. The rights
conferred thereunder are substantially the same as those under
Article X of the Company's By-Laws. In addition, the agreements
provide for indemnification of expenses incurred as a witness,
require the Company to observe specified procedures, within set
time limits, when indemnification or advancement of expenses is
requested and provide for payment of expenses incurred in
enforcing the agreement. Article XI of the Company's Restated
Certificate of Incorporation limits the personal liability of
directors to the Company or its shareholders for monetary damages
for certain breaches of fiduciary duty.
The Company has placed in effect insurance indemnifying
against certain liabilities that could arise from acts (or
omissions to act) of its officers and directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation, as amended to the
date hereof
4.2 Form of Common Stock Certificate
*4.3 By-Laws, as amended to the date hereof. (File No. 1-1430,
Form 10-Q Report for the Quarter Ended June 30, 1995,
Exhibit 3.2)
_____________
* Incorporated by reference.
*4.4 Rights Agreement dated as of November 23, 1987 (the "Rights
Agreement") between Reynolds Metals Company and The Chase
Manhattan Bank, N.A. (File No. 1-1430, Registration
Statement on Form 8-A dated November 23, 1987, pertaining to
Preferred Stock Purchase Rights, Exhibit 1)
*4.5 Amendment No. 1 dated as of December 19, 1991 to the Rights
Agreement. (File No. 1-1430, 1991 Form 10-K Report, Exhibit
4.11)
*4.6 Reynolds Metals Company Performance Incentive Plan, as
amended and restated effective January 1, 1996. (File No. 1-
1430, Form 10-Q Report for the Quarter Ended March 31, 1995,
Exhibit 10.4)
4.7 Reynolds Metals Company Stock Ownership Guidelines for
Officers
5 Opinion of D. Michael Jones, Esq., Vice President, General
Counsel and Secretary
23.1 Consent of Ernst & Young LLP
23.2 The consent of D. Michael Jones, Esq. is contained in
his opinion. See Exhibit 5 hereto.
24 Powers of Attorney
__________
* Incorporated by reference.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference
in the registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions referred to in Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of Henrico,
Commonwealth of Virginia, on this 14th day of February, 1996.
REYNOLDS METALS COMPANY
Richard G. Holder
By ___________________________
Richard G. Holder,
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities indicated on February 14, 1996.
Henry S. Savedge, Jr. Richard G. Holder
- ------------------------------- --------------------------------
Henry S. Savedge, Jr., Director Richard G. Holder, Director
Executive Vice President Chairman of the Board and
Chief Financial Officer Chief Executive Officer
(Principal Financial Officer) (Principal Executive Officer)
*Patricia C. Barron *William O. Bourke
- ------------------------------- --------------------------------
Patricia C. Barron, Director William O. Bourke, Director
*John R. Hall *Robert L. Hintz
- ------------------------------- --------------------------------
John R. Hall, Director Robert L. Hintz, Director
*William H. Joyce *Mylle B. Mangum
- ------------------------------- --------------------------------
William H. Joyce, Director Mylle Bell Mangum, Director
*D. Larry Moore Randolph N. Reynolds
- ------------------------------- --------------------------------
D. Larry Moore, Director Randolph N. Reynolds, Director
*James M. Ringler Jeremiah J. Sheehan
- ------------------------------- --------------------------------
James M. Ringler, Director Jeremiah J. Sheehan, Director
*Robert J. Vlasic *Joe B. Wyatt
- ------------------------------- --------------------------------
Robert J. Vlasic, Director Joe B. Wyatt, Director
*By: Brenda A. Hart Allen M. Earehart
- ------------------------------- --------------------------------
Brenda A. Hart, Attorney-in-Fact Allen M. Earehart,
Vice President, Controller
(Principal Accounting Officer)
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
4.1 Restated Certificate of Incorporation, as amended to the
date hereof
4.2 Form of Common Stock Certificate
*4.3 By-Laws, as amended to the date hereof. (File No. 1-1430,
Form 10-Q Report for the Quarter Ended June 30, 1995, Exhibit 3.2)
*4.4 Rights Agreement dated as of November 23, 1987 (the "Rights
Agreement") between Reynolds Metals Company and The Chase Manhattan
Bank, N.A. (File No. 1-1430, Registration Statement on Form 8-A dated
November 23, 1987, pertaining to Preferred Stock Purchase Rights,
Exhibit 1)
*4.5 Amendment No. 1 dated as of December 19, 1991 to the Rights
Agreement. (File No. 1-1430, 1991 Form 10-K Report, Exhibit 4.11)
*4.6 Reynolds Metals Company Performance Incentive Plan, as
amended and restated effective January 1, 1996. (File No. 1-1430,
Form 10-Q Report for the Quarter Ended March 31, 1995, Exhibit 10.4)
4.7 Reynolds Metals Company Stock Ownership Guidelines for
Officers
5 Opinion of D. Michael Jones, Esq., Vice President, General
Counsel and Secretary
23.1 Consent of Ernst & Young LLP
23.2 The consent of D. Michael Jones, Esq. is contained
in his opinion. See Exhibit 5 hereto.
24 Powers of Attorney
_________
* Incorporated by reference.
EXHIBIT 4.1
RESTATED
CERTIFICATE OF INCORPORATION
of
REYNOLDS METALS COMPANY
___________
INTRODUCTION
This Restated Certificate of Incorporation has been duly adopted by
the Board of Directors of Reynolds Metals Company in accordance with
Section 245 of the General Corporation Law of the State of Delaware. It
only restates and integrates, and does not further amend, the provisions of
the corporation's Certificate of Incorporation as heretofore amended or
supplemented, and there is no discrepancy between those provisions and this
Restated Certificate of Incorporation. The corporation's original
Certificate of Incorporation was filed with the Delaware Secretary of State
on July 18, 1928.
ARTICLE I
The name of the corporation is
REYNOLDS METALS COMPANY
ARTICLE II
Its registered office in the State of Delaware is located at 1013
Centre Road, in the City of Wilmington, County of New Castle, Delaware.
The name and address of its registered agent is CORPORATION SERVICE
COMPANY, a corporation of the State of Delaware, located at 1013 Centre
Road, Wilmington, New Castle County, Delaware.
ARTICLE III
The nature of the business and the objects and purposes proposed to
be transacted, promoted or carried on are:
1. To manufacture, purchase, or otherwise acquire, hold, own,
mortgage, pledge, sell, lease, assign and transfer, or otherwise dispose
of, to invest, trade, deal in and deal with, goods, wares and merchandise
and real and personal property of every class and description.
2. To erect, or cause to be erected, on any lands owned, held, and
occupied by the corporation, buildings or other structures with their
appurtenances and to rebuild, enlarge, alter, or improve any buildings or
other structures now, or hereafter erected, on any lands so owned, held, or
occupied.
3. To enter into, make and perform contracts of every kind for any
lawful purpose with any person, firm, association or corporation,
municipality, body politic, country, territory, State, government or colony
or dependency thereof.
4. To acquire the goodwill, rights and property and the whole or
any part of the assets, tangible or intangible, and to undertake or in any
way assume the liabilities of any person, firm, association or corporation;
to pay for the said goodwill, rights, property, and assets in cash, the
stock of this company, bonds or otherwise, or by undertaking the whole or
any part of the liabilities of the transferor; to hold or in any manner to
dispose of the whole or any part of the property so purchased; to conduct
in any lawful manner the whole or any part of any business so acquired, and
to exercise all the powers necessary or convenient in and about the conduct
and management of such business.
5. To apply for, purchase, register or in any manner to acquire,
and to hold, own, use, operate and introduce, and to sell, lease, assign,
pledge, or in any manner dispose of, and in any manner deal with patents,
patent rights, licenses, copyrights, trademarks, trade names, and to
acquire, own, use or in any manner dispose of any and all inventions,
improvements and processes, labels, designs, brands, or other rights, and
to work, operate, or develop the same, and to carry on any business,
manufacturing or otherwise, which may directly or indirectly effectuate
these objects or any of them.
6. To guarantee, purchase, receive, hold, own, sell, assign,
transfer, mortgage, pledge or otherwise dispose of shares of capital stock,
bonds, mortgages, debentures, notes or other securities, obligations,
contracts or evidences of indebtedness of any corporation, company or
association (organized under the laws of this State or any other State,
country, nation or government) or of any state, country, nation,
municipality, government or a body politic; to receive, collect and dispose
of interest, dividends and income upon, of and from any of the bonds,
mortgages, debentures, notes, shares of capital stock, securities,
obligations, contracts, evidences of indebtedness and other property held
or owned by it and to exercise in respect of all such bonds, mortgages,
debentures, notes, shares of capital stock, securities, obligations,
contracts, evidences of indebtedness and other property any and all rights,
powers and privileges of individual ownership thereof, including the right
to vote thereon.
7. Without limit as to amount to draw, make, accept, endorse,
discount, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures, and other negotiable or transferable
instruments and evidences of indebtedness whether secured by mortgage or
otherwise, as well as to secure the same by mortgage or otherwise, so far
as may be permitted by the laws of the State of Delaware.
8. To purchase, in so far as the same may be done without impairing
the capital of the corporation, and to hold, pledge and reissue shares of
its own capital stock; but such stock, so acquired and held, shall not be
entitled to vote nor to receive dividends.
9. To have one or more offices, conduct its business and promote
its objects within and without the State of Delaware, in other States, the
District of Columbia, the territories, colonies and dependencies of the
United States, and in foreign countries, without restriction as to place or
amount, but subject to the laws of such State, District, territory, colony,
dependency or country.
10. To do any or all of the things herein set forth to the same
extent as natural persons might or could do and in any part of the world,
as principals, agents, contractors, trustees, or otherwise, and either
alone or in company with others.
11. In general to carry on any other business in connection
therewith, whether manufacturing or otherwise, not forbidden by the laws of
the State of Delaware, and with all the powers conferred upon corporations
by the laws of the State of Delaware.
But if this corporation shall undertake to do any of the things
hereinabove set forth in any State other than Delaware, in the District of
Columbia, in any territory, colony, or dependency of the United States, or
in any foreign country or in any colony or dependency thereof, then as to
such jurisdictions and each of them this corporation shall be deemed to
have such powers in so far only as such jurisdictions respectively permit
corporations within their several respective jurisdictions to be organized
for or to execute such powers.
It is the intention that each of the objects, purposes and powers
specified in each of the paragraphs of this third article of this
Certificate of Incorporation shall, except where otherwise specified, be
nowise limited or restricted by reference to or inference from the terms of
any other paragraph or of any other article in this Certificate of
Incorporation, but that the objects, purposes and powers specified in this
article and in each of the articles or paragraphs of this Certificate shall
be regarded as independent objects, purposes and powers, and the
enumeration of specific purposes and powers shall not be construed to
restrict in any manner the general terms and powers of this corporation,
nor shall the expression of one thing be deemed to exclude another,
although it be of like nature.
ARTICLE IV
The total number of shares of stock of all classes that may be issued
by the Corporation is Two Hundred Twenty-one Million (221,000,000) shares,
of which Twenty Million (20,000,000) shares shall be preferred stock
without par value and shall be designated "Preferred Stock", One Million
(1,000,000) shares shall be second preferred stock of the par value of One
Hundred Dollars ($100.00) each and shall be designated "Second Preferred
Stock" and Two Hundred Million (200,000,000) shares shall be common stock
without par value and shall be designated "Common Stock".
I. PREFERRED STOCK
1. The Preferred Stock may be issued in one or more series, from
time to time, with each such series to have such designation, powers,
preferences and relative, participating, optional or other special rights,
and qualifications, limitations or restrictions thereof, as shall be stated
and expressed in the resolution or resolutions providing for the issue of
such series adopted by the Board of Directors of the Corporation (referred
to herein as the "Issuing Resolution" for such series), subject to the
limitations prescribed by law and in accordance with the provisions hereof,
the Board of Directors being hereby expressly vested with authority to
adopt any such resolution or resolutions.
2. The authority of the Board of Directors with respect to each
series of the Preferred Stock shall include, but not be limited to, the
determination or fixing of the following:
(a) The distinctive designation and number of shares comprising
such series, which number may (except where otherwise provided by the
Board of Directors in creating such series) be increased or decreased
(but not below the number of shares then outstanding) from time to
time by like action of the Board of Directors;
(b) The dividend rate of such series, the conditions upon which
and times at which such dividends shall be payable, the relation
which such dividends shall bear to the dividends payable on any other
series of the Preferred Stock, and whether such dividends shall be
cumulative or noncumulative;
(c) The conditions, if any, upon which the shares of such
series shall be subject to redemption by the Corporation and the
times, prices and other terms and provisions upon which the shares of
the series may be redeemed;
(d) Whether or not the shares of the series shall be subject to
the operation of a retirement or sinking fund to be applied to the
purchase or redemption of such shares and, if such retirement or
sinking fund be established, the annual amount thereof and the terms
and provisions governing the operation of such retirement or sinking
fund;
(e) Whether or not the shares of the series shall be
convertible into or exchangeable for shares of any other class or
classes, with or without par value, or of any other series of the
same class, and, if provision is made for conversion or exchange, the
times, prices, rates, adjustments, and other terms and conditions of
such conversion or exchange;
(f) Whether or not the shares of the series shall have voting
rights, in addition to the voting rights provided by law, and, if so,
the terms of such voting rights;
(g) The rights of the shares of the series in the event of
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation;
(h) The relative seniority, parity or junior rank of such
series with respect to any other series of the Preferred Stock; and
(i) Any other powers, preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, of the shares of such series, as the Board of
Directors may deem advisable and as shall not be inconsistent with
the provisions of this Certificate of Incorporation.
3. No holder of shares of any series of the Preferred Stock shall
have any preemptive or preferential right of subscription to any stock of
any class of the Corporation, or to any obligations convertible into stock
of any class, or to any warrant or option for the purchase of stock of any
class, except to the extent granted in the Issuing Resolution creating such
series.
4. The Board of Directors of the Corporation shall be empowered to
provide in any Issuing Resolution with respect to any series of the
Preferred Stock that any of the voting powers, designations, preferences,
rights and qualifications, limitations or restrictions of such series may
be made dependent upon facts ascertainable outside this Certificate of
Incorporation or any amendment hereto, or the Issuing Resolution with
respect to such series, so long as the manner in which such facts shall
operate upon the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such series is clearly and
expressly set forth in this Certification of Incorporation, as amended, or
in the Issuing Resolution for such series.
5. The holders of shares of the Preferred Stock of each series
shall be entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends,
dividends at the rate fixed by the Board of Directors in the Issuing
Resolution for such series, and no more, before
(i) any dividends (other than dividends payable in Second
Preferred Stock or in Common Stock or in any other class of stock ranking
junior to the Preferred Stock both as to dividends and upon liquidation,
dissolution or winding up) shall be declared and paid, or set apart for
payment, on, or
(ii) any moneys or other consideration (other than shares of
Second Preferred Stock or Common Stock or any other class of stock ranking
junior to the Preferred Stock both as to dividends and upon liquidation,
dissolution or winding up) is set aside for or applied to the purchase or
redemption of,
shares of the Second Preferred Stock or the Common Stock or any other class
of stock ranking junior to the Preferred Stock as to dividends or upon
liquidation, dissolution or winding up.
6. The holders of shares of the Preferred Stock of each series
shall be entitled upon liquidation, dissolution or winding up of the
Corporation, whether involuntary or voluntary, to such preferences as are
provided in the Issuing Resolution creating such series of the Preferred
Stock, and no more, before any distribution of the assets of the
Corporation shall be made to or set apart for the holders of shares of the
Second Preferred Stock or the Common Stock or any other class of stock
ranking junior to the Preferred Stock upon liquidation, dissolution or
winding up. For the purposes of this paragraph 6, a consolidation or
merger of the Corporation with or into one or more other corporations
(whether or not the Corporation is the corporation surviving such
consolidation or merger), or a sale, lease or exchange of all or
substantially all of the assets of the Corporation, shall not be deemed to
be a liquidation, dissolution or winding up, voluntary or involuntary.
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. The distinctive designation of
the series shall be "Series A Junior Participating Preferred Stock." The
shares constituting such series shall be without par value. The number of
shares constituting such series shall be 2,000,000, subject to increase or
decrease by action of the Board of Directors as evidenced by a certificate
of designations.
Section 2. Dividends and Distributions. (A) Subject to the prior
rights of the holders of any shares of any series of Preferred Stock
ranking prior to the shares of Series A Junior Participating Preferred
Stock with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors out of funds legally available for the
payment of dividends, quarterly dividends payable in cash on the first day
of January, April, July and October in each year or such other days on
which dividends are declared with respect to the Common Stock (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $10 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions (other than a dividend
payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise)), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since
the first issuance of any share or fraction of a share of Series A Junior
Participating Preferred Stock. If the Corporation shall at any time after
November 20, 1987 (the "Rights Declaration Date") (i) declare any dividend
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount to which holders of shares of
Series A Junior Participating Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Junior Participating Preferred Stock as provided in paragraph (A)
above immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common Stock);
provided that, if no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a dividend of
$10 per share on the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless (i) such date of issue is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or (ii) such
date of issue is either a Quarterly Dividend Payment Date or a date after
the record date for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Junior
Participating Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 60 days prior to
the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series A Junior Participating Preferred Stock shall entitle
the holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which
holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Junior Participating Preferred Stock and the holders of
shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) If and whenever at any time or times dividends payable on
shares of any Series A Junior Participating Preferred Stock shall have been
in arrears and unpaid in an aggregate amount equal to or exceeding the
amount of dividends payable thereon for six quarterly dividend periods,
then the holders of shares of any Series A Junior Participating Preferred
Stock, together with the holders of any other series of Preferred Stock as
to which dividends are in arrears and unpaid in an aggregate amount equal
to or exceeding the amount of dividends payable thereon for six quarterly
dividend periods, shall have the exclusive right, voting separately as a
class with such other series, to elect two directors of the Corporation,
such directors to be in addition to the number of directors constituting
the Board of Directors immediately prior to the accrual of such right, the
remaining directors to be elected by the other class or classes of stock
entitled to vote therefor at each meeting of stockholders held for the
purpose of electing directors.
(ii) Such voting right may be exercised initially either at a
special meeting of the holders of the Preferred Stock having such voting
right, called as hereinafter provided, or at any annual meeting of
stockholders held for the purpose of electing directors, and thereafter at
each such annual meeting until such time as all cumulative dividends
accumulated and payable on the shares of Series A Junior Participating
Preferred Stock shall have been paid in full, at which time such voting
right shall terminate, subject to revesting on the basis set forth in
paragraph (C)(i).
(iii) At any time when such voting right shall have vested in
holders of the Preferred Stock, and if such right shall not already have
been initially exercised, a proper officer of the Corporation shall, upon
the written request of the record holders of 10% in number of shares of
Preferred Stock having such voting right then outstanding, addressed to the
Secretary of the Corporation, call a special meeting of the holders of
Preferred Stock having such voting right and of any other class or classes
of stock having voting power with respect to the election of such
directors. Such meeting shall be held at the earliest practicable date
upon the notice required for annual meetings of stockholders at the place
for holding annual meetings of stockholders of the Corporation or, if none,
at a place designated by the Board of Directors. If such meeting is not
called by the proper officers of the Corporation within 30 days after the
personal service of such written request upon the Secretary of the
Corporation, or within 30 days after mailing the same within the United
States of America, by registered mail, addressed to the Secretary of the
Corporation at its principal office (such mailing to be evidenced by the
registry receipt issued by the postal authorities), then the record holders
of 10% in number of shares of the Preferred Stock then outstanding which
would be entitled to vote at such meeting may designate in writing one of
their number to call such meeting at the expense of the Corporation, and
such meeting may be called by such person so designated upon the notice
required for annual meetings of stockholders and shall be held at the same
place as is elsewhere provided for in this paragraph (C)(iii) or such other
place as is selected by such designated stockholder. Any holder of the
Preferred Stock who would be entitled to vote at such meeting shall have
access to the stock books of the Corporation for the purpose of causing a
meeting of stockholders to be called pursuant to the provisions of this
paragraph (C). Notwithstanding the provisions of this paragraph (C), no
such special meeting shall be called during a period within 90 days
immediately preceding the date fixed for the next annual meeting of
stockholders.
(iv) At any meeting held for the purpose of electing directors at
which the holders of the Preferred Stock shall have the right to elect two
directors in addition to the number of directors constituting the Board of
Directors immediately prior to accrual of such right as provided herein,
the presence in person or by proxy of the holders of 40% of the then
outstanding shares of Preferred Stock having such right shall be required
and shall be sufficient to constitute a quorum of such class of the
election of directors by such class. At any such meeting or adjournment
thereof (i) the absence of a quorum of the holders of the Preferred Stock
having such right shall not prevent the election of directors other than
those to be elected by the holders of the Preferred Stock, and the absence
of a quorum or quorums of the holders of capital stock entitled to elect
such other directors shall not prevent the election of directors to be
elected by the holders of the Preferred Stock entitled to elect such
directors and (ii) except as otherwise required by law, in the absence of a
quorum of the holders of any class of stock entitled to vote for the
election of directors, a majority of the holders present in person or by
proxy of such class shall have the power to adjourn the meeting for the
election of directors which the holders of such class are entitled to
elect, from time to time, without notice other than announcement at the
meeting, until a quorum is present.
(v) Any vacancy in the Board of Directors in respect of a director
elected by holders of Preferred Stock pursuant to the voting right created
under this paragraph (C) shall be filled by vote of the remaining director
so elected, or if there be no such remaining director, by the holders of
Preferred Stock entitled to elect such director or directors at a special
meeting called in accordance with the procedures set forth in paragraph
(C)(iii), or, if no such special meeting is called, at the next annual
meeting of stockholders. Upon any termination of such voting right,
subject to the requirements of the General Corporation Law of Delaware, the
term of office of all directors elected by holders of Preferred Stock
voting separately as a class shall terminate.
(D) Except as set forth herein, or as required by law, holders of
Series A Junior Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions. (A) Whenever quarterly dividends
or other dividends or distributions payable on the Series A Junior
Participating Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series A Junior Participating
Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior
Participating Preferred Stock, except dividends paid ratably on the Series
A Junior Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to
which the holders of all such shares are then entitled;
(ii) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors, after consideration
of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under Article IV,
Section I of its Certificate of Incorporation or paragraph (A) of this
Section 4, purchase or otherwise acquire such shares at such time and in
such manner.
Section 5. Reacquired Shares. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Junior Participating Preferred
Stock unless, prior thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received $100 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the full amount of the
Series A Liquidation Preference, no additional distributions shall be made
to the holders of shares of Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have
received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by
(ii) 100 (as appropriately adjusted as set forth in paragraph C below to
reflect such events as stock splits, stock dividends and recapitalizations
with respect to the Common Stock) (such number in clause (ii), the
"Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Junior Participating Preferred Stock and
Common Stock, respectively, holders of Series A Junior Participating
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) (i) If there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any, which rank on a
parity with the Series A Junior Participating Preferred Stock, then such
assets as are available shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences.
(ii) If there are not sufficient assets available to permit payment in
full of the Common Adjustment, then such assets as are available shall be
distributed ratably to the holders of Common Stock.
(C) If the Corporation shall at any time after November 20, 1987 (i)
declare any dividend payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case the shares of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. If the
Corporation shall at any time after the Rights Declaration Date (i) declare
any dividend payable in shares of Common Stock, (ii) subdivide the
outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
shares of Series A Junior Participating Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets, unless
the Issuing Resolution with respect to any such series shall provide
otherwise.
Section 10. Fractional Shares. Series A Junior Participating
Preferred Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Junior Participating
Preferred Stock.
II. SECOND PREFERRED STOCK
1. The Second Preferred Stock may be issued, from time to time, in
one or more series, in any manner now or hereafter permitted by law.
2. The shares of each series shall have the designations,
preferences and relative, participating, optional or other special rights,
and the qualifications, limitations or restrictions thereof, which are
stated and expressed in this section II, and those which are stated and
expressed in the resolution or resolutions providing for the issue of such
series, adopted by the Board of Directors under the authority granted to
the Board of Directors by the provisions of paragraph 3 of this section II.
3. Authority is hereby expressly granted to and vested in the Board
of Directors of the Corporation to provide for the issue of the Second
Preferred Stock in one or more series, and with respect to each such series
to fix, by resolution or resolutions, the following:
(a) The maximum number of shares to constitute the series and
the distinctive designation of the shares;
(b) The annual dividend rate on the shares of the series and
the date or dates from which dividends shall accumulate;
(c) The amount which the holders of shares of the series shall
be entitled to receive upon the voluntary liquidation, dissolution or
winding up of the Corporation, which shall not be less than the par
value plus an amount equal to all accumulated and unpaid dividends to
the date of final distribution to such holders;
(d) Whether or not the shares of the series shall be subject to
redemption at the option of the Corporation and if so, the price
which holders of shares so redeemed shall be entitled to receive,
which price may vary at different redemption dates but shall in no
event be less than the par value per share plus an amount equal to
all accumulated and unpaid dividends to the date of redemption, and
if such price varies, the period during which each such variation in
price shall be applicable;
(e) Whether or not the shares of the series shall be subject to
redemption through the operation of a sinking fund and, if so, the
terms and provisions of such sinking fund and the extent to which and
the manner in which such fund shall be applied to the purchase,
redemption or other acquisition of shares of the series and the
redemption price for shares redeemed through the sinking fund, which
price may vary at different redemption dates but shall in no event be
less than the par value per share plus an amount equal to all
accumulated and unpaid dividends to the date of redemption, and if
such price varies, the period during which each such variation in
price shall be applicable;
(f) Whether or not there shall be a purchase fund to acquire
shares of the series and, if so, the terms and provisions of the
purchase fund and the extent to which and the manner in which such
purchase fund shall be applied to the acquisition of shares of the
series;
(g) The limitations and restrictions, if any, in addition to,
but not in derogation of, the limitations and restrictions set forth
in paragraph 5 of this section II, which are to be effective while
any shares of the series are outstanding, upon payment of dividends
on, or making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation or any subsidiary
of, shares of Common Stock or any other class of stock ranking junior
to the Second Preferred Stock as to dividends or upon liquidation;
(h) The conditions or restrictions, if any, which are to be
effective while any shares of the series are outstanding, upon the
creation of indebtedness of the Corporation or upon the issuance of
shares of stock of the Corporation;
(i) Any voting rights of the shares of the series, other than
the voting rights for the election of Directors provided by paragraph
13 of this section II, in addition to and not inconsistent with those
granted by this Article IV to the holders of the Second Preferred
Stock;
(j) The right, if any, to exchange or convert the shares of the
series into shares of any other series of the Second Preferred Stock
or into shares of any other class of stock of the Corporation and the
rate or basis, time, manner and conditions of exchange or conversion
or the method by which the same shall be determined;
(k) Any other designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, of the series, which are now or
hereafter permitted by the laws of Delaware, and which are not
inconsistent with the provisions of paragraphs 4 to 17, inclusive, of
this section II.
The resolution or resolutions providing for the issue of shares of
any series are herein referred to as the "Issuing Resolution" for that
series.
4. All series of the Second Preferred Stock shall be senior to the
Common Stock and each series of the Second Preferred Stock shall rank
equally with every other series. Each share of any one series shall be
identical with every other share of that series except as to the date or
dates from which dividends shall accumulate.
5. Subject to the provisions of paragraph 5 of section I of this
Article IV and to any limitation or restriction contained in the Issuing
Resolution for any series of Preferred Stock, the holders of shares of each
series of the Second Preferred Stock shall be entitled to receive cash
dividends, when and as declared by the Board of Directors out of any funds
legally available therefor, at the annual rate fixed in the Issuing
Resolution for that particular series and no more. Such dividends on each
series of the Second Preferred Stock shall be payable quarterly on the
first day of February, May, August and November in each year to holders of
record on a date, not more than fifty (50) days before each such dividend
payment date, to be determined by the Board of Directors in advance of the
payment of each particular dividend. Dividends on each series of the
Second Preferred Stock shall be cumulative and preferential so that in no
event shall any dividend or other distribution (other than dividends
payable in Common Stock or in any other class of stock ranking junior to
the Second Preferred Stock as to dividends and upon liquidation) be
declared or paid upon or set apart for the Common Stock or any other class
of stock ranking junior to the Second Preferred Stock as to dividends or
upon liquidation nor shall any moneys or other consideration (other than
shares of Common Stock or any other class of stock ranking junior to the
Second Preferred Stock as to dividends and upon liquidation) be set aside
for or applied to the purchase or redemption of shares of Common Stock or
any other class of stock ranking junior to the Second Preferred Stock as to
dividends or upon liquidation, unless all dividends on each then
outstanding series of the Second Preferred Stock for all past
quarter-yearly dividend periods shall have been paid, or declared and a sum
sufficient for the payment thereof set apart, and the full dividend thereon
for the then quarterly dividend period shall have been or concurrently
shall be paid or declared. With respect to each series of the Second
Preferred Stock, such dividends shall accumulate from the date or dates
fixed in the Issuing Resolution for such series which date or dates shall
in no instance be more than ninety days before or after the date of the
issuance of those shares for which the date is being set. No dividends
shall be declared on any series of the Second Preferred Stock in respect of
any dividend period unless the same proportion of the annual dividend rate
respectively applicable to the shares of every series of the Second
Preferred Stock at the time outstanding shall likewise be declared as a
dividend in respect of such dividend period.
The term "accumulated and unpaid dividends" means, in respect of each
share of the Second Preferred Stock of any series, that amount which shall
be equal to simple interest upon the par value of such share at the
dividend rate for such series from the date from which dividends on such
share commenced to accumulate to the date as of which the computation is to
be made, less the aggregate amount (without interest thereon) of all
dividends theretofore paid or declared and set aside for payment in respect
thereof.
6. (a) In the event of any involuntary liquidation, dissolution or
winding up of the Corporation, the holders of the shares of every series of
the Second Preferred Stock shall, subject to the provisions of paragraph 6
of section I of this Article IV, be entitled to receive payment at the rate
of $100 per share, plus an amount equal to all accumulated and unpaid
dividends to the date of final distribution to such holders, and no more,
before any payment or distribution of the assets of the Corporation shall
be made to or set apart for the holders of the Common Stock or any other
class of stock ranking junior to the Second Preferred Stock upon
liquidation.
(b) In the event of any voluntary liquidation, dissolution or
winding up of the Corporation, the holders of the shares of each series of
the Second Preferred Stock shall, subject to the provisions of paragraph 6
of section I of this Article IV, be entitled to receive the amount set
forth for such payment in the Issuing Resolution for that particular
series, which amount shall in no case be less than $100 per share, plus an
amount equal to all accumulated and unpaid dividends to the date of final
distribution to such holders, and no more, before any payment or
distribution of the assets of the Corporation shall be made to or set apart
for the holders of the Common Stock or any other class of stock ranking
junior to the Second Preferred Stock upon liquidation.
(c) If, upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the assets of the
Corporation, or proceeds thereof, distributable among the holders of the
Second Preferred Stock shall be insufficient to pay in full the
preferential amount for every series of the Second Preferred Stock, then
such assets or the proceeds thereof shall be distributed among the holders
of the shares of all series of the Second Preferred Stock in proportion to
the respective amounts to which they would be entitled if all amounts
payable thereon were paid in full.
(d) For the purposes of this paragraph 6, a consolidation or merger
of the Corporation with or into one or more other corporations (whether or
not the Corporation is the corporation surviving such consolidation or
merger), or a sale, lease or exchange of all or substantially all of the
assets of the Corporation, shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
7. (a) If the Issuing Resolution for any series of the Second
Preferred Stock provides that the Corporation, at the option of the Board
of Directors, may redeem at any time all, or from time to time any part, of
the shares of the Second Preferred Stock of such series at the time
outstanding or if the Issuing Resolution for any series of the Second
Preferred Stock provides for the creation of a sinking fund to redeem
outstanding shares of that series of the Second Preferred Stock, the shares
of the series to be redeemed at the option of the Board of Directors or to
be redeemed through operation of the sinking fund shall be redeemed in the
manner set forth in this paragraph 7.
(b) Notice of every such redemption shall be mailed at least 30 days
in advance of the date designated for such redemption (herein called the
"redemption date") to the holders of record of the shares of the Second
Preferred Stock so to be redeemed at their respective addresses as the same
shall appear on the books of the Corporation. In order to facilitate the
redemption of any shares of the Second Preferred Stock that may be chosen
for redemption as provided in this paragraph 7, the Board of Directors
shall be authorized to cause the transfer books of the Corporation to be
closed as to such shares as of a date within fifteen (15) days prior to the
redemption date. In case of the redemption of a part only of any series of
the Second Preferred Stock at the time outstanding, the shares of such
series so to be redeemed shall be selected by lot or by such other
equitable method as the Board of Directors may determine.
(c) If said notice of redemption shall have been given as aforesaid,
and if on or before the redemption date, the funds necessary for such
redemption shall have been set aside by the Corporation, separate and apart
from its other funds, in trust for the pro rata benefit of the holders of
the shares so called for redemption, then, from and after the redemption
date, notwithstanding that any certificate for shares of the Second
Preferred Stock so called for redemption shall not have been surrendered
for cancellation, the shares represented thereby shall not be deemed
outstanding, and all rights of the holders of the shares of the Second
Preferred Stock so called for redemption shall forthwith, from and after
the redemption date, cease and terminate, excepting only the right to
receive the redemption price therefor but without interest. Any moneys so
set aside by the Corporation and unclaimed at the end of six years from the
date fixed for such redemption shall revert to the general funds of the
Corporation after which reversion any holder of such shares so called for
redemption shall have only such rights, if any, as he may possess under
applicable law to receive from the Corporation payment of the redemption
price.
(d) If, on or before the redemption date, the Corporation shall
deposit in trust, with a bank or trust company in the Borough of Manhattan,
in the City of New York, having a capital and surplus of at least
$5,000,000, the funds necessary for the redemption of the shares of the
Second Preferred Stock so to be redeemed, to be applied to the redemption
of such shares, and if the Corporation shall have given notice of
redemption as aforesaid or given irrevocable written authorization to such
bank or trust company, in form satisfactory to it, for the timely giving of
such notice, then from and after the time when such deposit is made all
shares of the Second Preferred Stock so called for redemption shall not be
deemed to be outstanding, and all rights of the holders of such shares of
the Second Preferred Stock so called for redemption shall cease and
terminate, excepting only the right to receive the redemption price
therefor, but without interest.
In case such deposit is made with a bank or trust company and any
holder of shares of the Second Preferred Stock which shall have been called
for redemption shall not, within one year after the redemption date, claim
the amount deposited with respect to the redemption thereof, such bank or
trust company shall, upon demand, pay over to the Corporation such
unclaimed amount and thereupon such bank or trust company shall be relieved
of all responsibility in respect thereof to such holder and such holder
thereafter shall have only such rights, if any, as he may possess under
applicable law to receive from the Corporation payment thereof. Any
interest accrued on funds so deposited shall be paid to the Corporation
from time to time. Any such unclaimed amounts paid over by any such bank
or trust company to the Corporation shall, for a period terminating six
years after the date fixed for redemption, be set aside and held by the
Corporation in the same manner as if such unclaimed amounts had been set
aside under the preceding paragraph 7(c).
8. Whether or not the Issuing Resolution for any series of the
Second Preferred Stock provides for optional redemption of shares, or for a
sinking fund or a purchase fund for the redemption or purchase of shares of
such series, the Corporation shall have the right, subject to the
provisions of paragraph 5 of section I of this Article IV and subject to
any limitation thereon in any Issuing Resolution for any series of
Preferred Stock or Second Preferred Stock, at any time to purchase
privately or in the public markets, and to solicit tenders of, any portion
or the whole of the shares of any or all series at prices which are not in
excess of the respective redemption prices of such shares.
9. (a) All shares of any series of the Second Preferred Stock
which have been acquired through the operation of a purchase fund or of a
sinking fund or by redemption or have been credited against any purchase
fund or sinking fund or have been surrendered to the Corporation on the
conversion or exchange thereof into or for other shares of the Corporation
shall, upon compliance with any applicable provisions of the General
Corporation Law of the State of Delaware, have the status of authorized and
unissued shares of the Second Preferred Stock, but shall be reissued only
as, or as part of, a new series of the Second Preferred Stock to be created
by an Issuing Resolution of the Board of Directors or as part of any other
series of the Second Preferred Stock the terms of which do not prohibit
such reissue as a part thereof, and shall not be reissued as a part of the
series of which they were originally a part.
(b) All shares of any series of the Second Preferred Stock which
have been acquired otherwise than through the operation of a purchase fund
or of a sinking fund or by redemption and which have not been credited
against any purchase fund or sinking fund, and which have not been
surrendered to the Corporation on the conversion or exchange thereof into
or for other shares of the Corporation, shall have the status of treasury
stock and may be disposed of as permitted by law.
10. So long as any of the Second Preferred Stock is outstanding, the
Corporation will not, without the affirmative vote or consent of the
holders of at least 66-2/3% of all of the Second Preferred Stock at the
time outstanding, voting as a class regardless of series, given in person
or by proxy, either in writing or by resolution adopted at a special
meeting called for the purpose:
(a) Amend, alter or repeal any of the provisions of this
Article IV so as to affect adversely the designations, preferences
and relative, participating, optional or other special rights, or the
qualifications, limitations or restrictions thereof, of all of the
series of the Second Preferred Stock;
(b) (i) increase the authorized amount of the Preferred Stock,
(ii) create any other class or classes of stock ranking senior to the
Second Preferred Stock either as to dividends or upon liquidation,
(iii) create any class or classes of stock which have any right to be
converted into any class or classes of stock ranking senior to the
Second Preferred Stock as to dividends or upon liquidation or grant
any rights to any class of stock to be so converted, or (iv) merge or
consolidate with or into any other corporation, if such merger or
consolidation would affect adversely the designations, preferences
and relative, participating, optional or other special rights, or the
qualifications, limitations or restrictions thereof, of all of the
series of the Second Preferred Stock.
11. The Corporation will not amend, alter or repeal any of the
provisions of this Article IV or of any Issuing Resolution for series of
Second Preferred Stock so as to affect adversely the designations,
preferences and relative, participating, optional or other special rights,
or the qualifications, limitations or restrictions thereof, of one or more,
but not all, series of the Second Preferred Stock, or merge or consolidate
with or into any other corporation if such merger or consolidation would
affect adversely the designations, preferences and relative, participating,
optional or other special rights, or the qualifications, limitations or
restrictions thereof, of one or more, but not all, series of the Second
Preferred Stock, without the affirmative vote or consent of the holders of
at least 66-2/3% of each series so adversely affected at the time
outstanding, voting as a class, in person or by proxy, either in writing or
by resolution adopted at a special meeting called for the purpose, but the
other series of the Second Preferred Stock not affected thereby shall not
have the right to vote thereon.
12. The Corporation will not, without the affirmative vote or
consent of the holders of at least a majority of all of the Second
Preferred Stock at the time outstanding, voting as a class regardless of
series, given in person or by proxy, either in writing or by resolution
adopted at a special meeting called for the purpose, (a) increase the
authorized amount of the Second Preferred Stock, (b) create any class or
classes of stock ranking on a parity with the Second Preferred Stock either
as to dividends or upon liquidation, or (c) create any class or classes of
stock which have any right to be converted into any class or classes of
stock ranking on a parity with the Second Preferred Stock as to dividends
or upon liquidation or grant any rights to any class of stock to be so
converted.
13. (a) If, and whenever, at any time or times, there shall remain
unpaid, on any series of the Second Preferred Stock, the dividends which
were payable for four full quarterly dividend periods, or if any arrearage
or default in any sinking fund provided for in any Issuing Resolution shall
occur under such conditions and continue for such period of time as, under
the provisions of such Issuing Resolution, to entitle the holders of the
outstanding shares of the Second Preferred Stock to the voting rights
provided by this paragraph 13, the outstanding Second Preferred Stock of
all series, voting separately as a class, shall have the right to elect two
Directors and the remaining Directors shall be elected by the holders of
shares of the Common Stock (subject to the voting rights of the holders of
the Preferred Stock).
(b) Whenever such right of the holders of the Second Preferred Stock
shall have vested, such right may be exercised initially either at a
special meeting of such holders of the Second Preferred Stock called as
provided in this paragraph, or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders. If the date upon which such
right of the holders of the Second Preferred Stock shall become vested
shall be more than sixty days preceding the date of the next ensuing annual
meeting of stockholders as fixed by the By-Laws of the Corporation, the
President of the Corporation shall call promptly a special meeting of the
holders of the Second Preferred Stock and the Common Stock to be held
within thirty days for the purpose of electing a new Board of Directors
(exclusive of any Directors elected to represent the Preferred Stock
pursuant to the provisions of section I of this Article IV) to serve until
the next annual meeting and until their successors shall be elected and
shall qualify. Notice of such meeting shall be mailed to each holder of
Second Preferred Stock and each holder of Common Stock not less than ten
days prior to the date of such meeting. If at any such meeting any
Director (other than a Director elected to represent the Preferred Stock)
shall not be re-elected, his term of office shall end upon the election of
his successor, notwithstanding that the term for which he was originally
elected shall not then have expired. In the event that at any such meeting
at which holders of the Second Preferred Stock shall be entitled to elect
Directors, a quorum of the holders of the Second Preferred Stock shall not
be present in person or by proxy, the holders of the Common Stock, if a
quorum thereof be present, may elect the Directors whom the holders of the
Second Preferred Stock were entitled, but failed, to elect. Such Directors
shall be designated as having been so elected to represent the Second
Preferred Stock and their successors shall be elected by the holders of the
Second Preferred Stock at the next annual meeting.
(c) Whenever the holders of the Second Preferred Stock shall be
entitled to elect Directors as provided in paragraph 13(a) of this section
II, any holder of Second Preferred Stock shall have the right, during
regular business hours, in person or by a duly authorized representative,
to examine and to make transcripts of the stock records of the Corporation
for the Second Preferred Stock for the purpose of communicating with other
holders of Second Preferred Stock with respect to the exercise of such
right of election.
(d) At any election of members of the Board of Directors by the
Second Preferred Stock, each holder of Second Preferred Stock shall have
one vote for each share of such stock standing in his name on the books of
the Corporation on any record date fixed for such purpose, or, if no such
date be fixed, on the date on which the election is held.
(e) The right of the holders of the Second Preferred Stock, voting
separately as a class, to elect members of the Board of Directors of the
Corporation as aforesaid shall continue until such time as any and all
unpaid dividends shall have been paid and any and all sinking fund
arrearages and defaults shall have been fully cured, at which time the
right of the holders of the Second Preferred Stock to elect members of the
Board of Directors shall terminate, subject to revesting.
(f) Whenever the holders of the Second Preferred Stock shall be
divested of the right to elect members of the Board of Directors, the
President of the Corporation shall, within ten days after delivery to the
Corporation at its principal office of a request to such effect signed by
any holder of Common Stock, call a special meeting of the holders of the
Common Stock to be held within forty days after the delivery of such
request for the purpose of electing a new Board of Directors (exclusive of
any Directors elected to represent the Preferred Stock pursuant to the
provisions of section I of this Article IV) to serve until the next annual
meeting or until their respective successors shall be elected and shall
qualify. If, at any such special meeting, any Director (other than a
Director elected to represent the Preferred Stock) shall not be re-elected,
his term of office shall terminate upon the election and qualification of
his successor, notwithstanding that the term for which such Director was
originally elected shall not then have expired.
14. At any annual or special meeting of stockholders held for the
purpose of electing Directors when the holders of the Second Preferred
Stock shall be entitled to elect members of the Board of Directors as
provided in paragraph 13 of this section II, the presence in person or by
proxy of the holders of one-third of all of the outstanding shares of the
Second Preferred Stock regardless of series shall be required to constitute
a quorum for the election by the Second Preferred Stock of such Directors,
and the presence in person or by proxy of the holders of a majority of the
outstanding shares of the Common Stock shall be required to constitute a
quorum for the election by the Common Stock of the remaining Directors
(other than Directors elected to represent the Preferred Stock pursuant to
the provisions of section I of this Article IV); provided, however, that
absence of a quorum of the Common Stock shall not prevent the Second
Preferred Stock if it has a quorum present from electing the number of
Directors such class shall be entitled to elect and the Directors so
elected by the Second Preferred Stock shall replace an equal number of
Directors then in office. The Directors to be replaced by those elected by
the holders of the Second Preferred Stock shall be designated by the Board
of Directors of the Corporation; and, if the Board of Directors shall fail
to make such designation within 15 days following such meeting, then such
designation shall be made by the Directors elected by the holders of the
Second Preferred Stock. The absence of a quorum of the Second Preferred
Stock shall not prevent the Common Stock from electing the entire Board of
Directors (other than Directors elected to represent the Preferred Stock)
which shall include the proper number of members to represent the Second
Preferred Stock.
15. If, during any interval between annual meetings of stockholders
for the election of Directors and while the holders of the Second Preferred
Stock shall be entitled to elect Directors, one of the Directors in office
elected by the holders of the Second Preferred Stock shall resign or die or
be removed, the vacancy shall be filled by a majority vote of all of the
remaining Directors then in office, although less than a quorum, who shall
elect a nominee designated by the remaining Director elected by the holders
of the Second Preferred Stock or his successor and if not so filled within
forty days after the creation thereof, the President of the Corporation
shall call a special meeting in the manner provided in paragraph 13 of this
section II but limited to the holders of shares of the Second Preferred
Stock and such vacancy shall be filled at such special meeting, to be held
within forty days after the delivery of such request.
16. If the Corporation is unable to meet the requirements of all
sinking fund and of all purchase fund provisions of all Issuing Resolutions
for series of Second Preferred Stock containing such provisions, the number
of shares of the respective series to be redeemed or purchased, as the case
may be, shall be in proportion to the respective amounts which would be
redeemed or purchased if all such provisions were complied with in full.
17. No holder of shares of any series of the Second Preferred Stock
shall have any preemptive or preferential right of subscription to any
stock of any class of the Corporation, or to any obligations convertible
into stock of any class, or to any warrant or option for the purchase of
stock of any class but the Board of Directors of the Corporation, in the
Issuing Resolution creating any series of the Second Preferred Stock, may
confer on that series the right to subscribe to additional shares of that
series or to shares of any series of the Second Preferred Stock which may
be created thereafter.
III. COMMON STOCK
1. All rights shall be held and possessed by the Common Stock
except for the designations, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, conferred on the Preferred Stock and the Second
Preferred Stock by applicable law, by the provisions of sections I and II
of this Article IV or by the provisions of any Issuing Resolutions for
series of the Preferred Stock or the Second Preferred Stock.
2. Holders of the shares of Common Stock without par value shall
have no right to subscribe for or purchase any part of any new or
additional issue of stock of any class whatsoever or of securities
convertible into stock of any class whatsoever whether now or hereafter
authorized.
ARTICLE V
The number of shares with which this corporation will commence
business is ten (10) shares of common stock, which shares are without
nominal or par value.
ARTICLE VI
This corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ARTICLE VII
This corporation is to have perpetual existence.
ARTICLE VIII
The private property of the stockholders shall not be subject to the
payment of corporate debts to any extent whatever.
ARTICLE IX
In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
1. To make, alter, amend and rescind the by-laws of this
corporation, without any action on the part of the stockholders.
2. To authorize and cause to be executed mortgages and liens upon
the real and personal property of this corporation.
3. To fix, determine and vary the amount to be maintained as
surplus and, subject to the other provisions and requirements of this
Certificate of Incorporation, the amount or amounts to be set apart or
reserved as working capital or for any other lawful purposes. If so
determined by the Board of Directors, the corporation may from time to time
receive money and/or other property and credit the amount or value thereof
to reserve or surplus, and such money or other property may be an undivided
part of money or other property for another part of which stock, bonds,
debentures and/or other obligations of the corporation are issued. Against
any reserve or surplus so established there may be charged losses at any
time incurred by the corporation, also dividends or other distributions
upon stock. Such reserve or surplus may be reduced from time to time by
the Board of Directors for the purposes above specified or by transfer from
such reserve or surplus to capital account.
4. From time to time to determine whether and to what extent, and
at what times and places, and under what conditions and regulations, the
accounts and books of this corporation (other than the stock ledger), or
any of them, shall be open to inspection of stockholders; and no
stockholder shall have any right of inspecting any account, book or
document of this corporation except as conferred by statute, unless
authorized by a resolution of stockholders or directors.
5. If the by-laws so provide, to designate two or more of its
number to constitute an executive committee, which committee shall for the
time being, as provided in said resolution or in the by-laws of this
corporation, have and exercise any or all of the powers of the Board of
Directors in the management of the business and affairs of this
corporation, and have power to authorize the seal of this corporation to be
affixed to all papers which may require it.
6. Pursuant to the affirmative vote of the holders of at least a
majority of the stock issued and outstanding having voting power, given at
a stockholders' meeting duly called for that purpose, or when authorized by
the written consent of the holders of a majority of the voting stock issued
and outstanding, the Board of Directors shall have power and authority at
any meeting to sell, lease or exchange all of the property and assets of
this corporation, including its goodwill and its corporate franchises, upon
such terms and conditions as its Board of Directors deem expedient and for
the best interests of the corporation.
7. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application
in a summary way of this corporation or of any creditor or stockholder
thereof, or on the application of any receiver or receivers appointed for
this corporation under the provisions of Section 3883 of the Revised Code
of 1915 of said State, or on the application of trustees in dissolution or
of any receiver or receivers appointed for this corporation under the
provisions of Section 43 of this Chapter, order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders
of this corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths
in value of the creditors or class of creditors, and/or of the stockholders
or class of stockholders of this corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of this corporation
as a consequence of such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by the court
to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this corporation, as the case may be, and also on this
corporation.
8. This corporation may in its by-laws confer powers upon its
directors in addition to the foregoing and in addition to the powers and
authorities expressly conferred upon them by the statute.
9. Both stockholders and directors shall have power, if the by-laws
so provide, to hold their meetings, and to have one or more offices within
or without the State of Delaware and to keep the books of this corporation
(subject to the provisions of the statutes), outside of the State of
Delaware at such places as may be from time to time designated by the Board
of Directors.
ARTICLE X
The number of directors of this corporation shall be such number, not
less than three, as shall from time to time be fixed by the by-laws of the
corporation. In case of any vacancy in the Board of Directors through
death, resignation, disqualification or other cause, the remaining
directors, by affirmative vote of a majority thereof, may elect a successor
to office for the unexpired portion of the term of the director whose place
shall be vacant and until the election of a successor.
ARTICLE XI
A director of this corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except that nothing contained in this Article
XI shall eliminate or limit the liability of a director (1) for any breach
of the director's duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) under Section 174 of the
Delaware General Corporation Law, or (4) for any transaction from which the
director derived an improper personal benefit. No amendment to or repeal
of this Article XI shall apply to or have any effect on the liability or
alleged liability of any director of the corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
ARTICLE XII
In the absence of fraud, no contract or transaction between this
corporation and any other association or corporation shall be affected by
the fact that any of the Directors or officers of this corporation are
interested in or are directors or officers of such other association or
corporation, and any director or officer of this corporation individually
may be a party to or may be interested in any such contract or transaction
of this corporation; and no such contract or transaction of this
corporation with any person or persons, firm, association or corporation
shall be affected by the fact that any director or officer of this
corporation is a party to or interested in such contract or transaction or
in any way connected with such person or persons, firm, association or
corporation; and each and every person who may become a director or officer
of this corporation is hereby relieved from any liability that might
otherwise exist from thus contracting with this corporation for the benefit
of himself or any person, firm, association or corporation in which he may
be in any wise interested.
IN WITNESS WHEREOF, the corporation has caused its corporate seal to
be affixed and this Restated Certificate of Incorporation to be signed by
its Senior Vice President and General Counsel and attested by its Secretary
this 21st day of October, 1988.
REYNOLDS METALS COMPANY
By /s/ John H. Galea
John H. Galea
Senior Vice President and
General Counsel
ATTEST:
/s/ Donald T. Cowles
Donald T. Cowles
Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
FOIL DISTRIBUTING COMPANY
INTO
REYNOLDS METALS COMPANY
___________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
___________________________________
REYNOLDS METALS COMPANY, a corporation incorporated on the 18th
day of July, 1928, pursuant to the provisions of the General Corporation
Law of the State of Delaware (the "Corporation"), does hereby certify that
the Corporation owns all of the outstanding stock of FOIL DISTRIBUTING
COMPANY, a corporation incorporated on the 4th day of April, 1983, pursuant
to the provisions of the general corporation Law of the State of Delaware,
and that the Corporation by resolutions of its Board of Directors duly
adopted at a meeting held on the 17th day of April, 1991, determined to and
did merge into itself said FOIL DISTRIBUTING COMPANY, which resolutions are
as follows:
RESOLVED, that this corporation, as owner of all the
outstanding capital stock of Foil Distributing Company, merge
into itself Foil Distributing Company and assume all of its
liabilities and obligations effective as of 12:01 a.m. on April
30, 1991; and
FURTHER RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Secretary and any Assistant
Secretary are each hereby authorized to take all such other
action, including, without limitation, incurrence and payment
of all fees, expenses and other charges, and to execute and
deliver all such agreements, instruments and documents, which
in the opinion of any of them may be necessary or desirable to
achieve the purposes of or effect the transactions contemplated
by the preceding resolution, the taking of such action or the
execution of any such agreements, instruments or documents to
be conclusive evidence of the authority to take or execute the
same.
This Certificate of Ownership and Merger shall be effective as
of 12:01 A.M. on April 30, 1991.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be executed and attested by its officers thereunto duly authorized this
22nd day of April, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
Donna C. Dabney
Assistant Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
REYNOLDS OF HAWAII, INC.
INTO
REYNOLDS METALS COMPANY
___________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
___________________________________
REYNOLDS METALS COMPANY, a corporation incorporated on the 18th
day of July, 1928, pursuant to the provisions of the General Corporation
Law of the State of Delaware (the "Corporation"), does hereby certify that
the Corporation owns all of the outstanding stock of REYNOLDS OF HAWAII,
INC., a corporation incorporated on the 4th day of May, 1979, pursuant to
the provisions of the general corporation Law of the State of Delaware, and
that the Corporation by resolutions of its Board of Directors duly adopted
at a meeting held on the 17th day of April, 1991, determined to and did
merge into itself said REYNOLDS OF HAWAII, INC., which resolutions are as
follows:
RESOLVED, that this corporation, as owner of all the
outstanding capital stock of Reynolds of Hawaii, Inc., merge
into itself Reynolds of Hawaii, Inc. and assume all of its
liabilities and obligations effective as of 12:01 a.m. on April
30, 1991; and
FURTHER RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Secretary and any Assistant
Secretary are each hereby authorized to take all such other
action, including, without limitation, incurrence and payment
of all fees, expenses and other charges, and to execute and
deliver all such agreements, instruments and documents, which
in the opinion of any of them may be necessary or desirable to
achieve the purposes of or effect the transactions contemplated
by the preceding resolution, the taking of such action or the
execution of any such agreements, instruments or documents to
be conclusive evidence of the authority to take or execute the
same.
This Certificate of Ownership and Merger shall be effective as
of 12:01 A.M. on April 30, 1991.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be executed and attested by its officers thereunto duly authorized this
22nd day of April, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
Donna C. Dabney
Assistant Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
BROAD ST. ROAD CORPORATION
INTO
REYNOLDS METALS COMPANY
___________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
___________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify that the Corporation owns all the
outstanding stock of BROAD ST. ROAD CORPORATION, a Delaware corporation,
and that the Corporation by resolutions of its Board of Directors duly
adopted at a meeting held on the 15th day of November, 1991, determined to
and did merge into itself BROAD ST. ROAD CORPORATION, which resolutions are
as follows:
RESOLVED, that this corporation, as owner of all the
outstanding capital stock of Broad St. Road Corporation, merge
into itself Broad St. Road Corporation and assume all of its
liabilities and obligations effective as of 5:00 p.m. on
December 31, 1991; and
FURTHER RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Secretary and any Assistant
Secretary are each hereby authorized to take all such other
action, including, without limitation, incurrence and payment
of all fees, expenses and other charges, and to execute and
deliver all such agreements, instruments and documents, which
in the opinion of any of them may be necessary or desirable to
achieve the purposes of or effect the transactions contemplated
by the preceding resolution, the taking of such action or the
execution of any such agreements, instruments or documents to
be conclusive evidence of the authority to take or execute the
same.
This Certificate of Ownership and Merger shall be effective as
of 5:00 p.m. on December 31, 1991.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be executed and attested by its officers thereunto duly authorized this
26th day of November, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
D. Michael Jones
Assistant Secretary
CERTIFICATE OF OWNERSHIP
AND MERGER
MERGING
REYNOLDS ALUMINUM RECYCLING COMPANY
INTO
REYNOLDS METALS COMPANY
____________________________________
Pursuant to Section 253 of the
Delaware General Corporation Law
____________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify that the Corporation owns all the
outstanding stock of REYNOLDS ALUMINUM RECYCLING COMPANY, a Missouri
corporation, and that the Corporation by resolutions of its Board of
Directors duly adopted by unanimous written consent on December 16, 1991
pursuant to Section 141(f) of the Delaware General Corporation Law
determined to and did merge into itself REYNOLDS ALUMINUM RECYCLING
COMPANY, which resolutions are as follows:
RESOLVED, that this corporation, as owner of all the
outstanding capital stock of Reynolds Aluminum Recycling
Company, merge into itself Reynolds Aluminum Recycling Company
and assume all of its liabilities and obligations effective as
of 5:00 p.m. on December 31, 1991 pursuant to the following
Plan of Merger:
1. Reynolds Metals Company of Delaware is the
survivor.
2. All of the property, rights, privileges, leases
and patents of Reynolds Aluminum Recycling Company, a
Missouri corporation, are to be transferred to and
become the property of Reynolds Metals Company, the
survivor. The officers and board of directors of the
above named corporations are authorized to execute
all deeds, assignments, and documents of every nature
which may be needed to effectuate a full and complete
transfer of ownership.
3. The officers and board of directors of Reynolds
Metals Company shall continue in office until their
successors are duly elected and qualified under the
provisions of the by-laws of the surviving
corporation.
4. It is agreed that, upon and after the issuance
of a certificate of merger by the Secretary of State
of the State of Missouri:
a. The surviving corporation may be served
with process in the State of Missouri in
any proceeding for the enforcement of any
obligation of any corporation organized
under the laws of the State of Missouri
which is a party to the merger and in any
proceeding for the enforcement of the
rights of a dissenting shareholder of any
such corporation organized under the laws
of the State of Missouri against the
surviving corporation;
b. The Secretary of State of the State of
Missouri shall be and hereby is irrevocably
appointed as the agent of the surviving
corporation to accept service of process in
any such proceeding; the address to which
the service of process in any such
proceeding shall be mailed is: Secretary,
Reynolds Metals Company, 6601 West Broad
Street, Richmond, Virginia 23230; and
c. The surviving corporation will promptly pay
to the dissenting shareholders of any
corporation organized under the laws of the
State of Missouri which is a party to the merger
the amount, if any, to which they shall be
entitled under the provisions of "The General
and Business Corporation Law of Missouri" with
respect to the rights of dissenting
shareholders.
5. The articles of incorporation of the survivor
are not amended.
provided that, at any time prior to the filing with the
Delaware Secretary of State of a Certificate of Ownership and
Merger merging Reynolds Aluminum Recycling Company into this
corporation, the Board of Directors of this corporation may
terminate this resolution and abandon the merger contemplated
hereby; and
FURTHER RESOLVED, that the Chairman of the Board, the
President, any Vice President, the Secretary and any Assistant
Secretary are each hereby authorized to take all such action,
including, without limitation, incurrence and payment of all
fees, expenses and other charges, and to execute and deliver
all such agreements, instruments and documents, which in the
opinion of any of them may be necessary or desirable to achieve
the purposes of or effect the transactions contemplated by the
preceding resolution, the taking of such action or the
execution of any such agreements, instruments or documents to
the conclusive evidence of the authority to take or execute the
same.
This Certificate of Ownership and Merger shall be effective as
of 5:00 p.m. on December 31, 1991.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be executed and attested by its officers thereunto duly authorized this
20th day of December, 1991.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
ATTEST:
D. Michael Jones
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
REYNOLDS SEATTLE CAN COMPANY
INTO
REYNOLDS METALS COMPANY
_____________________________________________
Pursuant to Section 253 of the
General Corporation Law of Delaware
_____________________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to the
General Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares
of each class of the capital stock of REYNOLDS SEATTLE CAN COMPANY, a
Delaware corporation.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted at a meeting held on the 19th day of
June, 1992, determined to merge into itself REYNOLDS SEATTLE CAN COMPANY on
the conditions set forth in such resolutions:
RESOLVED, that this corporation, as owner of all of
the outstanding shares of each class of the capital stock
of Reynolds Seattle Can Company, merge into itself
Reynolds Seattle Can Company and assume all of its
liabilities and obligations effective as of 5:00 p.m.
E.D.T. on June 30, 1992; and
FURTHER RESOLVED, that the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer,
any Vice Chairman, any Executive Vice President, any Vice
President, the Secretary and any Assistant Secretary are
each hereby authorized to take all such action, including,
without limitation, incurrence and payment of all fees,
expenses and other charges, and to execute and deliver all
such agreements, instruments and documents (including,
without limitation, a certificate of ownership and merger)
which in the opinion of any of them may be necessary or
desirable to achieve the purposes of or effect the
transactions contemplated by the preceding resolution, the
taking of any such action or the execution of any such
agreements, instruments or documents to be conclusive
evidence of the authority to take or execute the same.
This Certificate of Ownership and Merger shall be effective as
of 5:00 p.m. E.D.T. on June 30, 1992.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be affixed and this Certificate to be executed and attested by its
officers thereunto duly authorized this 19th day of June, 1992.
REYNOLDS METALS COMPANY
By Donald T. Cowles
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By: D. Michael Jones
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
REYNOLDS ALUMINUM CREDIT CORPORATION
INTO
REYNOLDS METALS COMPANY
Pursuant to Section 253 of the
General Corporation Law of Delaware
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to the
General Corporation Law of the State of Delaware.
SECOND: That the Corporations owns all of the outstanding shares
of the capital stock of REYNOLDS ALUMINUM CREDIT CORPORATION, a Delaware
corporation.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted by unanimous written consent dated
December 16, 1993, determined to merge into itself REYNOLDS ALUMINUM CREDIT
CORPORATION on the conditions set forth in such resolutions:
RESOLVED, that this corporation, as owner of all of the
outstanding shares of the capital stock of Reynolds Aluminum
Credit Corporation, merge into itself Reynolds Aluminum Credit
Corporation and assume all of its liabilities and obligations
effective as of 5:00 p.m. E.S.T. on December 31, 1993;
FURTHER RESOLVED, that the Chief Executive Officer, the
Chief Financial Officer, any Vice Chairman, any Executive Vice
President, any Vice President, the Secretary and any Assistant
Secretary are each hereby authorized to take all such action,
including, without limitation, incurrence and payment of all
fees, expenses and other charges, and to execute and deliver all
such agreements, instruments and documents (including, without
limitation, a certificate of ownership and merger) which in the
opinion of any of them may be necessary or desirable to achieve
the purposes of or effect the transactions contemplated by the
preceding resolution, the taking of any such action or the
execution of any such agreements, instruments or documents to be
conclusive evidence of the authority to take or execute the
same.
This Certificate of Ownership and Merger shall be effective as
of 5:00 p.m. E.S.T. on December 31, 1993.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be affixed and this Certificate to be executed and attested by its
officers thereunto duly authorized this 29th day of December, 1993.
REYNOLDS METALS COMPANY
By: D. Michael Jones
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By:Carol L. Dillon
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
REYNOLDS KANSAS CITY CAN COMPANY
INTO
REYNOLDS METALS COMPANY
Pursuant to Section 253 of the
General Corporation Law of Delaware
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to the
General Corporation Law of the State of Delaware.
SECOND: That the Corporations owns all of the outstanding shares
of each class of the capital stock of REYNOLDS KANSAS CITY CAN COMPANY, a
Delaware corporation.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted by unanimous written consent dated
December 16, 1993, determined to merge into itself REYNOLDS KANSAS CITY CAN
COMPANY on the conditions set forth in such resolutions:
RESOLVED, that this corporation, as owner of all of the
outstanding shares of each class of the capital stock of
Reynolds Kansas City Can Company, merge into itself Reynolds
Kansas City Can Company and assume all of its liabilities and
obligations effective as of 5:00 p.m. E.S.T. on December 31,
1993;
FURTHER RESOLVED, that the Chief Executive Officer, the
Chief Financial Officer, any Vice Chairman, any Executive Vice
President, any Vice President, the Secretary and any Assistant
Secretary are each hereby authorized to take all such action,
including, without limitation, incurrence and payment of all
fees, expenses and other charges, and to execute and deliver all
such agreements, instruments and documents (including, without
limitation, a certificate of ownership and merger) which in the
opinion of any of them may be necessary or desirable to achieve
the purposes of or effect the transactions contemplated by the
preceding resolution, the taking of any such action or the
execution of any such agreements, instruments or documents to be
conclusive evidence of the authority to take or execute the
same.
This Certificate of Ownership and Merger shall be effective as
of 5:00 p.m. E.S.T. on December 31, 1993.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be affixed and this Certificate to be executed and attested by its
officers thereunto duly authorized this 29th day of December, 1993.
REYNOLDS METALS COMPANY
By:D. Michael Jones
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By:Carol L. Dillon
Assistant Secretary
CERTIFICATE OF DESIGNATIONS,
PREFERENCES, RIGHTS AND LIMITATIONS OF
7% PRIDES, Convertible Preferred Stock
of
REYNOLDS METALS COMPANY
______________________
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
______________________
Reynolds Metals Company, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby
certifies that, under (i) authority conferred upon the Board of Directors
by the Restated Certificate of Incorporation of the Corporation, as amended
to date, (ii) the provisions of Sections 141(c) and 151 of the General
Corporation Law of the State of Delaware, and (iii) resolutions adopted by
the Board of Directors at its meeting on December 17, 1993, the 1993
Preferred Stock Committee of the Board of Directors at its meeting on
January 18, 1994 duly adopted the following resolution:
RESOLVED, that under (i) authority conferred upon the 1993
Preferred Stock Committee by the Board of Directors and (ii)
authority conferred upon the Board of Directors by the Restated
Certificate of Incorporation, as amended to date (the "Restated
Certificate of Incorporation"), the 1993 Preferred Stock Committee
hereby authorizes the issuance of 11,000,000 shares of authorized and
unissued preferred stock, without par value, of the Corporation, and
hereby fixes the designation, powers, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of such shares,
in addition to those set forth in the Restated Certificate of
Incorporation, as follows, to be set forth in a certificate of
designations (the "Certificate of Designations"):
Section 1. Designation and Size of Issue; Ranking. (a)
The distinctive designation of the series of preferred stock shall be
"7% PRIDES, Convertible Preferred Stock" (the "PRIDES"). The shares
are Preferred Redeemable Increased Dividend Equity Securities. The
number of shares constituting the PRIDES shall be 11,000,000 shares.
Each share of PRIDES shall have a stated value of $47.25.
(b) Any shares of the PRIDES which at any time have been
redeemed for, or converted into, Common Stock, without par value, of
the Corporation (the "Common Stock") or otherwise reacquired by the
Corporation shall, after such redemption, conversion or other
acquisition, resume the status of authorized and unissued shares of
preferred stock, without par value, of the Corporation (the
"Preferred Stock"), without designation as to series until such
shares are once more designated as part of a particular series by the
Board of Directors.
(c) The shares of PRIDES shall rank on a parity, both as
to payment of dividends and distribution of assets upon liquidation,
with any Preferred Stock issued by the Corporation after the date of
this Certificate of Designations that by its terms ranks pari passu
with the PRIDES.
Section 2. Dividends. (a) The holders of record of the
shares of PRIDES shall be entitled to receive, when and as declared
by the Board of Directors out of funds legally available therefor,
cash dividends ("Preferred Dividends") from the date of the issuance
of the shares of PRIDES at the rate per annum of 7 percent of the
stated value per share (equivalent to $3.31 per annum or $0.8275 per
quarter for each share of PRIDES), payable quarterly in arrears, on
each April 1, July 1, October 1 and December 31 (each a "Dividend
Payment Date") or, if any such date is not a business day (as defined
herein), the Preferred Dividend due on such Dividend Payment Date
shall be paid on the next succeeding business day; provided, however,
that, with respect to any dividend period during which a redemption
occurs, the Corporation may, at its option, declare accrued Preferred
Dividends to, and pay such Preferred Dividends on, the date fixed for
redemption, in which case such Preferred Dividends shall be payable
to the holders of shares of PRIDES as of the record date for such
dividend payment and shall not be included in the calculation of the
related PRIDES Call Price (as defined herein). The first dividend
period shall be from the date of initial issuance of the shares of
PRIDES to but excluding April 1, 1994 and the first Preferred
Dividend shall be payable on April 1, 1994. Preferred Dividends on
shares of PRIDES shall be cumulative and shall accumulate from the
date of original issuance. Preferred Dividends on shares of PRIDES
shall cease to accrue on and after the Mandatory Conversion Date (as
defined herein) or on and after the date of their earlier conversion
or redemption, as the case may be. Preferred Dividends shall be
payable to holders of record as they appear on the stock register of
the Corporation on such record dates, not less than 15 nor more than
60 days preceding the payment date thereof, as shall be fixed by the
Board of Directors. Preferred Dividends payable on shares of PRIDES
for any period less than a full quarterly dividend period (or, in the
case of the first Preferred Dividend, from the date of initial
issuance of the shares of PRIDES to but excluding the first Dividend
Payment Date) shall be computed on the basis of a 360-day year of
twelve 30-day months and the actual number of days elapsed in any
period less than one month. Preferred Dividends shall accrue on a
daily basis whether or not there are funds of the Corporation legally
available for the payment of such dividends and whether or not such
Preferred Dividends are declared. Accrued but unpaid Preferred
Dividends shall cumulate as of the Dividend Payment Date on which
they first become payable, but no interest shall accrue on
accumulated but unpaid Preferred Dividends.
(b) As long as shares of PRIDES are outstanding, no
dividends (other than dividends payable in shares of, or warrants,
rights or options exercisable for or convertible into shares of,
Second Preferred Stock, $100 par value, of the Corporation (the
"Second Preferred Stock"), Common Stock or any other capital stock of
the Corporation ranking junior to the shares of PRIDES as to the
payment of dividends and the distribution of assets upon liquidation
(collectively, the "Junior Stock") and cash in lieu of fractional
shares in connection with any such dividend) shall be paid or
declared in cash or otherwise, nor shall any other distribution be
made (other than a distribution payable in Junior Stock and cash in
lieu of fractional shares in connection with any such distribution),
on any Junior Stock unless (i) full dividends on Preferred Stock
(including the shares of PRIDES) that does not constitute Junior
Stock ("Parity Preferred Stock") have been paid, or declared and set
aside for payment, for all dividend periods terminating at or before
the date of such Junior Stock dividend or distribution payment to the
extent such dividends are cumulative; (ii) dividends in full for the
current quarterly dividend period have been paid, or declared and set
aside for payment, on all Parity Preferred Stock to the extent such
dividends are cumulative; (iii) the Corporation has paid or set aside
all amounts, if any, then or theretofore required to be paid or set
aside for all purchase, retirement, and sinking funds, if any, for
any Parity Preferred Stock; and (iv) the Corporation is not in
default on any of its obligations to redeem any Parity Preferred
Stock.
(c) As long as any shares of PRIDES are outstanding, no
shares of any Junior Stock may be purchased, redeemed, or otherwise
acquired by the Corporation or any of its subsidiaries (except in
connection with a reclassification or exchange of any Junior Stock
through the issuance of other Junior Stock (and cash in lieu of
fractional shares in connection therewith) or the purchase,
redemption or other acquisition of any Junior Stock with any Junior
Stock (and cash in lieu of fractional shares in connection
therewith)) nor may any funds be set aside or made available for any
sinking fund for the purchase or redemption of any Junior Stock
unless: (i) full dividends on Parity Preferred Stock have been paid,
or declared and set aside for payment, for all dividend periods
terminating at or before the date of such purchase, redemption or
other acquisition to the extent such dividends are cumulative; (ii)
dividends in full for the current quarterly dividend period have been
paid, or declared and set aside for payment, on all Parity Preferred
Stock to the extent such dividends are cumulative; (iii) the
Corporation has paid or set aside all amounts, if any, then or
theretofore required to be paid or set aside for all purchase,
retirement, and sinking funds, if any, for any Parity Preferred
Stock; and (iv) the Corporation is not in default on any of its
obligations to redeem any Parity Preferred Stock.
(d) As long as any shares of PRIDES are outstanding,
dividends or other distributions may not be declared or paid on any
Parity Preferred Stock (other than dividends or other distributions
payable in Junior Stock and cash in lieu of fractional shares in
connection therewith), and the Corporation may not purchase, redeem
or otherwise acquire any Parity Preferred Stock (except with any
Junior Stock and cash in lieu of fractional shares in connection
therewith), unless either: (a)(i) full dividends on Parity Preferred
Stock have been paid, or declared and set aside for payment, for all
dividend periods terminating at or before the date of such Parity
Preferred Stock dividend, distribution, purchase, redemption or other
acquisition payment to the extent such dividends are cumulative; (ii)
dividends in full for the current quarterly dividend period have been
paid, or declared and set aside for payment, on all Parity Preferred
Stock to the extent such dividends are cumulative; (iii) the
Corporation has paid or set aside all amounts, if any, then or
theretofore required to be paid or set aside for all purchase,
retirement, and sinking funds, if any, for any Parity Preferred
Stock; and (iv) the Corporation is not in default on any of its
obligations to redeem any Parity Preferred Stock; or (b) with respect
to the payment of dividends only, any such dividends shall be
declared and paid pro rata so that the amounts of any dividends
declared and paid per share of PRIDES and each other share of Parity
Preferred Stock shall in all cases bear to each other the same ratio
that accrued dividends (including any accumulation with respect to
unpaid dividends for prior dividend periods, if such dividends are
cumulative) per share of PRIDES and such other shares of Parity
Preferred Stock bear to each other.
Section 3. Conversion or Redemption. (a) Unless
previously either redeemed or converted at the option of the holder
in accordance with the provisions of Section 3(c), on December 31,
1997 (the "Mandatory Conversion Date"), each outstanding share of
PRIDES shall mandatorily convert ("Mandatory Conversion") into (i)
shares of authorized Common Stock at the PRIDES Common Equivalent
Rate (as defined herein) in effect on the Mandatory Conversion Date
and (ii) the right to receive cash in an amount equal to all accrued
and unpaid Preferred Dividends on such share of PRIDES (other than
previously declared dividends payable to a holder of record as of a
prior date) to but excluding the Mandatory Conversion Date, whether
or not declared, out of funds legally available for the payment of
Preferred Dividends, subject to the right of the Corporation to
redeem the shares of PRIDES on or after December 31, 1996 (the
"Initial Redemption Date") and before the Mandatory Conversion Date
and subject to the conversion of the shares of PRIDES at the option
of the holder at any time before the Mandatory Conversion Date. The
"PRIDES Common Equivalent Rate" shall initially be one share of
Common Stock for each share of PRIDES and shall be subject to
adjustment as set forth in Sections 3(d) and 3(e). Shares of PRIDES
shall cease to be outstanding on the Mandatory Conversion Date. The
Corporation shall make such arrangements as it deems appropriate for
the issuance of certificates representing shares of Common Stock and
for the payment of cash in respect of such accrued and unpaid
dividends, if any, or cash in lieu of fractional shares, if any, in
exchange for and contingent upon surrender of certificates
representing the shares of PRIDES, and the Corporation may defer the
payment of dividends on such shares of Common Stock and the voting
thereof until, and make such payment and voting contingent upon, the
surrender of certificates representing the shares of PRIDES;
provided, that the Corporation shall give the holders of the shares
of PRIDES such notice of any such actions as the Corporation deems
appropriate and upon surrender such holders shall be entitled to
receive such dividends declared and paid, if any, on such shares of
Common Stock subsequent to the Mandatory Conversion Date.
(b)(i) Shares of PRIDES are not redeemable by the
Corporation before the Initial Redemption Date. At any time and from
time to time on or after that date until immediately before the
Mandatory Conversion Date, the Corporation shall have the right to
redeem, in whole or in part, the outstanding shares of PRIDES
(subject to the notice provisions set forth in Section 3(b)(iii)).
Upon any such redemption, the Corporation shall deliver to each
holder thereof, in exchange for each such share of PRIDES subject to
redemption, the greater of:
(A) the number of shares of Common Stock equal to the
applicable PRIDES Call Price (as defined herein) in effect on
the redemption date divided by the Current Market Price (as
defined herein) of the Common Stock, determined as of the second
Trading Day (as defined herein) immediately preceding the Notice
Date (as defined herein); or
(B) .82 of a share of Common Stock (subject to adjustment
in the same manner as the PRIDES Optional Conversion Rate (as
defined herein) is adjusted).
Preferred Dividends on the shares of PRIDES shall cease to accrue on
and after the date fixed for their redemption.
The "PRIDES Call Price" of each share of PRIDES shall be
the sum of (x) $48.077 on and after the Initial Redemption Date, to
and including March 31, 1997; $47.870 on and after April 1, 1997, to
and including June 30, 1997; $47.663 on and after July 1, 1997, to
and including September 30, 1997; $47.457 on and after October 1,
1997, to and including November 30, 1997; and $47.25 on and after
December 1, 1997, to and including December 31, 1997; and (y) all
accrued and unpaid Preferred Dividends thereon to but not including
the date fixed for redemption (other than previously declared
Preferred Dividends payable to a holder of record as of a prior
date). If fewer than all the outstanding shares of PRIDES are to be
called for redemption, shares of PRIDES to be called shall be
selected by the Corporation from outstanding shares of PRIDES not
previously called by lot or pro rata (as nearly as may be) or by any
other method determined by the Board of Directors in its sole
discretion to be equitable.
(ii) The term "Current Market Price" per share of the
Common Stock on any date of determination means the lesser of (x) the
average of the Closing Prices (as defined herein) of the Common Stock
for the 15 consecutive Trading Days ending on and including such date
of determination, or (y) the Closing Price of the Common Stock for
such date of determination; provided, however, that, with respect to
any redemption of shares of PRIDES, if any event resulting in an
adjustment of the PRIDES Common Equivalent Rate occurs during the
period beginning on the first day of such 15-day period and ending on
the applicable redemption date, the Current Market Price as
determined pursuant to the foregoing shall be appropriately adjusted
to reflect the occurrence of such event.
(iii) The Corporation shall provide notice of any
redemption of the shares of PRIDES to holders of record of the shares
of PRIDES to be called for redemption not less than 15 nor more than
60 days before the date fixed for redemption. Any such notice shall
be provided by mail, sent to the holders of record of the shares of
PRIDES to be called at each such holder's address as it appears on
the stock register of the Corporation, first class postage prepaid;
provided, however, that failure to give such notice or any defect
therein shall not affect the validity of the proceeding for
redemption of any shares of PRIDES to be redeemed except as to the
holder to whom the Corporation has failed to give such notice or
whose notice was defective. A public announcement of any call for
redemption shall be made by the Corporation before, or at the time
of, the mailing of such notice of redemption. The term "Notice Date"
with respect to any notice given by the Corporation in connection
with a redemption of the shares of PRIDES means the date on which
first occurs either the public announcement of such redemption or the
commencement of mailing of the notice to the holders of shares of
PRIDES, in each case pursuant to this Section 3(b)(iii).
Each such notice shall state, as appropriate, the following
and may contain such other information as the Corporation deems
advisable:
(A) the redemption date;
(B) that all outstanding shares of PRIDES are to be
redeemed or, in the case of a redemption of fewer than all
outstanding shares of PRIDES, the number of such shares held by
such holder to be redeemed;
(C) the PRIDES Call Price, the number of shares of Common
Stock deliverable upon redemption of each share of PRIDES to be
redeemed and the Current Market Price used to calculate such
number of shares of Common Stock;
(D) the place or places where certificates for such shares
are to be surrendered for redemption; and
(E) that dividends on the shares of PRIDES to be redeemed
shall cease to accrue on and after such redemption date (except
as otherwise provided herein).
(iv) The Corporation's obligation to deliver shares of
Common Stock and provide funds upon redemption in accordance with
this Section 3(b) shall be deemed fulfilled if, on or before a
redemption date, the Corporation shall deposit with a bank or trust
company, or an affiliate of a bank or trust company, having an office
or agency in New York, New York and having (or such affiliate having)
a combined capital and surplus of at least $50,000,000 according to
its last published statement of condition, or shall set aside or make
other reasonable provision for the issuance of, such number of shares
of Common Stock as are required to be delivered by the Corporation
pursuant to this Section 3(b) upon the occurrence of the related
redemption of shares of PRIDES and for the payment of cash in lieu of
the issuance of fractional share amounts and accrued and unpaid
dividends payable in cash on the shares of PRIDES to be redeemed as
required by this Section 3(b), in trust for the account of the
holders of such shares of PRIDES to be redeemed (and so as to be and
continue to be available therefor), with irrevocable instructions and
authority to such bank or trust company that such shares and funds be
delivered upon redemption of the shares of PRIDES so called for
redemption. Any interest accrued on such funds shall be paid to the
Corporation from time to time. Any shares of Common Stock or funds
so deposited and unclaimed at the end of three years from such
redemption date shall be repaid and released to the Corporation,
after which the holder or holders of such shares of PRIDES so called
for redemption shall look only to the Corporation for delivery of
shares of Common Stock and the payment of any other funds due in
connection with the redemption of the shares of PRIDES.
(v) Each holder of shares of PRIDES called for redemption
must surrender the certificates evidencing such shares (properly
endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state) to the Corporation at the
place designated in the notice of such redemption and shall thereupon
be entitled to receive certificates evidencing shares of Common Stock
and to receive any funds payable pursuant to this Section 3(b)
following such surrender and following the date of such redemption.
In case fewer than all the shares represented by any such surrendered
certificate are called for redemption, a new certificate shall be
issued at the expense of the Corporation representing the unredeemed
shares. If such notice of redemption shall have been given, and if
on the date fixed for redemption shares of Common Stock and funds
necessary for the redemption shall have been irrevocably either set
aside by the Corporation separate and apart from its other funds or
assets in trust for the account of the holders of the shares to be
redeemed (and so as to be and continue to be available therefor) or
deposited with a bank or trust company or an affiliate thereof as
provided herein or the Corporation shall have made other reasonable
provision therefor, then notwithstanding that the certificates
evidencing any shares of PRIDES so called for redemption shall not
have been surrendered, the shares represented thereby so called for
redemption shall be deemed no longer outstanding and Preferred
Dividends with respect to the shares so called for redemption and all
rights with respect to the shares so called for redemption shall
forthwith on and after such date cease and terminate (unless the
Corporation defaults on the payment of the redemption price), except
for (i) the rights of the holders to receive the shares of Common
Stock and funds, if any, payable pursuant to this Section 3(b)
without interest upon surrender of their certificates therefor and
(ii) the right of the holders, pursuant to Section 3(c) to convert
the shares of PRIDES called for redemption until immediately before
the close of business on any redemption date; provided, however, that
holders of shares of PRIDES at the close of business on a record date
for any payment of Preferred Dividends shall be entitled to receive
the Preferred Dividend payable on such shares on the corresponding
Dividend Payment Date notwithstanding the redemption of such shares
following such record date and before the Dividend Payment Date.
Holders of shares of PRIDES that are redeemed shall not be entitled
to receive dividends declared and paid on such shares of Common
Stock, and such shares of Common Stock shall not be entitled to vote,
until such shares of Common Stock are issued upon the surrender of
the certificates representing such shares of PRIDES and upon such
surrender such holders shall be entitled to receive such dividends
declared and paid on such shares of Common Stock subsequent to such
redemption date.
(c) Shares of PRIDES are convertible, in whole or in part,
at the option of the holders thereof ("Optional Conversion"), at any
time before the Mandatory Conversion Date, unless previously
redeemed, into shares of Common Stock at a rate of .82 of a share of
Common Stock for each share of PRIDES (the "PRIDES Optional
Conversion Rate"), subject to adjustment as set forth below. The
right of Optional Conversion of shares of PRIDES called for
redemption shall terminate immediately before the close of business
on any redemption date with respect to such shares.
Optional Conversion of shares of PRIDES may be effected by
delivering certificates evidencing such shares of PRIDES, together
with written notice of conversion and a proper assignment of such
certificates to the Corporation or in blank (and, if applicable, cash
payment of an amount equal to the Preferred Dividend attributable to
the current quarterly dividend period payable on such shares), to the
office of the transfer agent for the shares of PRIDES or to any other
office or agency maintained by the Corporation for that purpose and
otherwise in accordance with Optional Conversion procedures
established by the Corporation. Each Optional Conversion shall be
deemed to have been effected immediately before the close of business
on the date on which the foregoing requirements shall have been
satisfied. The Optional Conversion shall be at the PRIDES Optional
Conversion Rate in effect at such time and on such date.
Holders of shares of PRIDES at the close of business on a
record date for any payment of declared Preferred Dividends shall be
entitled to receive the Preferred Dividend payable on such shares of
PRIDES on the corresponding Dividend Payment Date notwithstanding the
Optional Conversion of such shares of PRIDES following such record
date and before such Dividend Payment Date. However, shares of
PRIDES surrendered for Optional Conversion after the close of
business on a record date for any payment of declared Preferred
Dividends and before the opening of business on the next succeeding
Dividend Payment Date must be accompanied by payment in cash of an
amount equal to the Preferred Dividends attributable to the current
quarterly dividend period payable on such date (unless such shares of
PRIDES are subject to redemption on a redemption date between such
record date established for such Dividend Payment Date and such
Dividend Payment Date). Except as provided above, upon any Optional
Conversion of shares of PRIDES, the Corporation shall make no payment
of or allowance for unpaid Preferred Dividends, whether or not in
arrears, on such shares of PRIDES as to which Optional Conversion has
been effected or for previously declared dividends or distributions
on the shares of Common Stock issued upon Optional Conversion.
(d) The PRIDES Common Equivalent Rate and the PRIDES
Optional Conversion Rate are each subject to adjustment from time to
time as provided below in this paragraph (d).
(i) If the Corporation shall pay a stock dividend or make
a distribution with respect to its Common Stock in shares of
Common Stock (including by way of reclassification of any shares
of its Common Stock), the PRIDES Common Equivalent Rate and the
PRIDES Optional Conversion Rate in effect at the opening of
business on the day following the date fixed for the
determination by stockholders entitled to receive such dividend
or other distribution shall each be increased by multiplying
such PRIDES Common Equivalent Rate and PRIDES Optional
Conversion Rate by a fraction of which the numerator shall be
the sum of the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination,
immediately before such dividend or distribution, plus the total
number of shares of Common Stock constituting such dividend or
other distribution, and of which the denominator shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination, immediately
before such dividend or distribution, such increase to become
effective immediately after the opening of business on the day
following the date fixed for such determination. For the
purposes of this clause (i), the number of shares of Common
Stock at any time outstanding shall not include shares held in
the treasury of the Corporation but shall include shares
issuable in respect of certificates issued in lieu of fractions
of shares of Common Stock.
(ii) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common
Stock, the PRIDES Common Equivalent Rate and the PRIDES Optional
Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall each be proportionately increased, and, conversely, in
case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the PRIDES Common
Equivalent Rate and the PRIDES Optional Conversion Rate in
effect at the opening of business on the day following the day
upon which such combination becomes effective shall each be
proportionately reduced, such increases or reductions, as the
case may be, to become effective immediately after the opening
of business on the day following the day upon which such
subdivision or combination becomes effective.
(iii) If the Corporation shall, after the date of this
Certificate of Designations, issue rights or warrants to all
holders of its Common Stock entitling them (for a period not
exceeding 45 days from the date of such issuance) to subscribe
for or purchase shares of Common Stock at a price per share less
than the Current Market Price of the Common Stock (determined
pursuant to Section 3(b)(ii)) on the record date for the
determination of stockholders entitled to receive such rights or
warrants, then in each case the PRIDES Common Equivalent Rate
and the PRIDES Optional Conversion Rate shall each be adjusted
by multiplying the PRIDES Common Equivalent Rate and the PRIDES
Optional Conversion Rate in effect on such record date by a
fraction of which the numerator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately before such issuance, plus the number
of additional shares of Common Stock offered for subscription or
purchase pursuant to such rights or warrants, and of which the
denominator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants,
immediately before such issuance, plus the number of shares of
Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered for subscription or
purchase pursuant to such rights or warrants would purchase at
such Current Market Price (determined by multiplying such total
number of shares by the exercise price of such rights or
warrants and dividing the product so obtained by such Current
Market Price). Shares of Common Stock held by the Corporation
or by another corporation of which a majority of the shares
entitled to vote in the election of directors are held, directly
or indirectly, by the Corporation shall not be deemed to be
outstanding for purposes of such computation. Such adjustment
shall become effective at the opening of business on the
business day next following the record date for the
determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not
delivered after the expiration of such rights or warrants, the
PRIDES Common Equivalent Rate and the PRIDES Optional Conversion
Rate shall each be readjusted to the PRIDES Common Equivalent
Rate and the PRIDES Optional Conversion Rate which would then be
in effect had the adjustments made after the issuance of such
rights or warrants been made upon the basis of issuance of
rights or warrants in respect of only the number of shares of
Common Stock actually delivered.
(iv) If the Corporation shall pay a dividend or make a
distribution to all holders of its Common Stock consisting of
evidences of its indebtedness, cash or other assets (including
shares of capital stock of the Corporation other than Common
Stock but excluding any cash dividends or distributions, other
than Extraordinary Cash Distributions (as defined herein) and
dividends referred to in clauses (i) and (ii) above), or shall
issue to all holders of its Common Stock rights or warrants to
subscribe for or purchase any of its securities (other than
those referred to in clause (iii) above), then in each such
case, the PRIDES Common Equivalent Rate and the PRIDES Optional
Conversion Rate shall each be adjusted by multiplying the PRIDES
Common Equivalent Rate and the PRIDES Optional Conversation Rate
in effect on the record date for such dividend or distribution
or for the determination of stockholders entitled to receive
such rights or warrants, as the case may be, by a fraction of
which the numerator shall be the Current Market Price per share
of the Common Stock (determined pursuant to Section 3(b)(ii) on
such record date), and of which the denominator shall be such
Current Market Price per share of Common Stock less either (i)
the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) on such record date of
the portion of the assets or evidences of indebtedness so
distributed, or of such subscription rights or warrants,
applicable to one share of Common Stock, or (ii) if applicable,
the amount of the Extraordinary Cash Distributions. Such
adjustment shall become effective on the opening of business on
the business day next following the record date for such
dividend or distribution or for the determination of holders
entitled to receive such rights or warrants, as the case may be.
(v) Any shares of Common Stock issuable in payment of a
dividend or other distribution shall be deemed to have been
issued immediately before the close of business on the record
date for such dividend or other distribution for purposes of
calculating the number of outstanding shares of Common Stock
under this Section 3.
(vi) Anything in this Section 3 notwithstanding, the
Corporation shall be entitled (but shall not be required) to
make such upward adjustments in the PRIDES Common Equivalent
Rate, the PRIDES Optional Conversion Rate and the PRIDES Call
Price in addition to those set forth by this Section 3, as the
Corporation, in its sole discretion, shall determine to be
advisable, in order that any stock dividends, subdivision of
stock, distribution of rights to purchase stock or securities,
or distribution of securities convertible into or exchangeable
for stock (or any transaction that could be treated as any of
the foregoing transactions pursuant to Section 305 of the
Internal Revenue Code of 1986, as amended) hereafter made by the
Corporation to its stockholders shall not be taxable. The term
"Extraordinary Cash Distribution" means, with respect to any
consecutive 12-month period, all cash dividends and cash
distributions on the Common Stock during such period (other than
cash dividends and cash distributions for which a prior
adjustment to the PRIDES Common Equivalent Rate and PRIDES
Optional Conversion Rate was previously made) to the extent such
dividends and distributions exceed, on a per share of Common
Stock basis, 10% of the average daily Closing Price of the
Common Stock over such period.
(vii) In any case in which this Section 3(d) shall require
that an adjustment as a result of any event become effective at
the opening of business on the business day next following a
record date and the date fixed for conversion pursuant to
Section 3(a) or redemption pursuant to Section 3(b) on and after
such record date, but before the occurrence of such event, the
Corporation may, in its sole discretion, elect to defer the
following until after the occurrence of such event: (A) issuing
to the holder of any shares of PRIDES surrendered for conversion
or redemption the fractional shares of Common Stock issuable
before giving effect to such adjustment; and (B) paying to such
holder any amount in cash in lieu of a fractional share of
Common Stock pursuant to Section 4.
(viii) All adjustments to the PRIDES Common Equivalent
Rate and the PRIDES Optional Conversion Rate shall be calculated
to the nearest 1/100th of a share of Common Stock. No
adjustment in the PRIDES Common Equivalent Rate or in the PRIDES
Optional Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one
percent therein; provided, however, that any adjustments which
by reason of this Section 3(d) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All adjustments to the PRIDES Common Equivalent
Rate and PRIDES Optional Conversion Rate shall be made
successively.
(ix) At least 10 business days before taking any action
that could result in an adjustment affecting the PRIDES Common
Equivalent Rate or the PRIDES Optional Conversion Rate such that
the conversion price (for purposes of this section, an amount
equal to the PRIDES Call Price divided by the PRIDES Common
Equivalent Rate or the PRIDES Optional Conversion Rate,
respectively, as in effect from time to time) would be below the
then par value of the Common Stock, the Corporation shall take
any corporate action which may, in the opinion of its counsel,
be necessary in order that the Corporation may validly and
legally issue fully paid and nonassessable shares of Common
Stock at the PRIDES Common Equivalent Rate or the PRIDES
Optional Conversion Rate as so adjusted.
(x) Before redeeming any shares of PRIDES, the Corporation
shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly
and legally issue fully paid and nonassessable shares of Common
Stock upon such redemption.
(e) In case of any consolidation or merger to which the
Corporation is a party (other than a consolidation or merger in which
the Corporation is the surviving or continuing corporation and in
which the shares of Common Stock outstanding immediately before the
merger or consolidation remain unchanged), or in the case of any sale
or transfer to another corporation of the property of the Corporation
as an entirety or substantially as an entirety, or in the case of a
statutory exchange of securities with another corporation (other than
in connection with a merger or acquisition), each share of PRIDES
shall, after consummation of such transaction, be subject to (i)
conversion at the option of the holder into the kind and amount of
securities, cash, or other property receivable upon consummation of
such transaction by a holder of the number of shares of Common Stock
into which such share of PRIDES might have been converted immediately
before consummation of such transaction, (ii) conversion on the
Mandatory Conversion Date into the kind and amount of securities,
cash, or other property receivable upon consummation of such
transaction by a holder of the number of shares of Common Stock into
which such share of PRIDES would have been converted if the
conversion on the Mandatory Conversion Date had occurred immediately
before the date of consummation of such transaction, plus the right
to receive cash in an amount equal to all accrued and unpaid
dividends on such share of PRIDES (other than previously declared
dividends payable to a holder of record as of a prior date), and
(iii) redemption on any redemption date in exchange for the kind and
amount of securities, cash, or other property receivable upon
consummation of such transaction by a holder of the number of shares
of Common Stock that would have been issuable at the PRIDES Call
Price in effect on such redemption date upon a redemption of such
share of PRIDES immediately before consummation of such transaction,
assuming that, if the Notice Date for such redemption is not before
such transaction, the Notice Date had been the date of such
transaction; and assuming in each case that such holder of shares of
Common Stock failed to exercise rights of election, if any, as to the
kind or amount of securities, cash, or other property receivable upon
consummation of such transaction (provided that, if the kind or
amount of securities, cash, or other property receivable upon
consummation of such transaction is not the same for each
non-electing share, then the kind and amount of securities, cash, or
other property receivable upon consummation of such transaction for
each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). The
kind and amount of securities into or for which the shares of PRIDES
shall be convertible or redeemable after consummation of such
transaction shall be subject to adjustment as described in Section
3(d) following the date of consummation of such transaction. The
Corporation may not become a party to any such transaction unless the
terms thereof are consistent with the foregoing.
(f) Whenever the PRIDES Common Equivalent Rate and PRIDES
Optional Conversion Rate are adjusted as provided in Section 3(d),
the Corporation shall:
(i) forthwith compute the adjusted PRIDES Common
Equivalent Rate and PRIDES Optional Conversion Rate in
accordance with this Section 3 and prepare a certificate signed
by the Chief Financial Officer, any Vice President, the
Treasurer or the Controller of the Corporation setting forth the
adjusted PRIDES Common Equivalent Rate and the PRIDES Optional
Conversion Rate, the method of calculation thereof in reasonable
detail and the facts requiring such adjustment and upon which
such adjustment is based, which certificate shall be conclusive,
final and binding evidence of the correctness of the adjustment,
and shall file such certificate forthwith with the transfer
agent for the shares of the PRIDES and the Common Stock;
(ii) make a prompt public announcement stating that the
PRIDES Common Equivalent Rate and PRIDES Optional Conversion
Rate have been adjusted and setting forth the adjusted PRIDES
Common Equivalent Rate and PRIDES Optional Conversion Rate;
(iii) mail a notice stating that the PRIDES Common
Equivalent Rate and the PRIDES Optional Conversion Rate have
been adjusted, the facts requiring such adjustment and upon
which such adjustment is based and setting forth the adjusted
PRIDES Common Equivalent Rate and PRIDES Optional Conversion
Rate, to the holders of record of the outstanding shares of
PRIDES, at or prior to the time the Corporation mails an interim
statement, if any, to its stockholders covering the fiscal
quarter period during which the facts requiring such adjustment
occurred, but in any event within 45 days of the end of such
fiscal quarter period.
(g) In case, at any time while any of the shares of PRIDES
are outstanding,
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock, excluding any cash dividends
other than Extraordinary Cash Distributions; or
(ii) the Corporation shall authorize the issuance to all
holders of the Common Stock of rights or warrants to subscribe
for or purchase shares of the Common Stock or of any other
subscription rights or warrants; or
(iii) the Corporation shall authorize any reclassification
of the Common Stock (other than a subdivision or combination
thereof) or any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the
Corporation is required (except for a merger of the Corporation
into one of its subsidiaries solely for the purpose of changing
the corporate domicile of the Corporation to another state of
the United States and in connection with which there is no
substantive change in the rights or privileges of any securities
of the Corporation other than changes resulting from differences
in the corporate statutes of the state the Corporation was then
domiciled in and the new state of domicile), or the sale or
transfer of all or substantially all of the assets of the
Corporation;
then the Corporation shall cause to be filed at each office or agency
maintained for the purpose of conversion of the shares of PRIDES, and
shall cause to be mailed to the holders of shares of PRIDES at their
last addresses as they shall appear on the stock register of the
Corporation, at least 10 business days before the date hereinafter
specified in clause (A) or (B) below (or the earlier of the dates
hereinafter specified, in the event that more than one date is
specified), a notice stating (A) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or
(B) the date on which any such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange
their Common Stock for securities or other property (including cash),
if any, deliverable upon such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up. The
failure to give or receive the notice required by this paragraph (g)
or any defect therein shall not affect the legality or validity of
any such dividend, distribution, right or warrant or other action.
Section 4. No Fractional Shares. No fractional shares of
Common Stock shall be issued upon redemption or conversion of any
shares of the PRIDES. In lieu of any fractional share otherwise
issuable in respect of the aggregate number of shares of the PRIDES
of any holder that are redeemed or converted on any redemption date
or upon Mandatory Conversion or Optional Conversion, such holder
shall be entitled to receive an amount in cash (computed to the
nearest cent) equal to the same fraction of the (i) Current Market
Price of the Common Stock (determined as of the second Trading Day
immediately preceding the Notice Date) in the case of redemption, or
(ii) Closing Price of the Common Stock determined (A) as of the fifth
Trading Day immediately preceding the Mandatory Conversion Date, in
the case of Mandatory Conversion, or (B) as of the second Trading Day
immediately preceding the effective date of conversion, in the case
of an Optional Conversion by a holder. If more than one share of
PRIDES shall be surrendered for conversion or redemption at one time
by or for the same holder, the number of full shares of Common Stock
issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of the PRIDES so surrendered or
redeemed.
Section 5. Reservation of Common Stock. The Corporation
shall at all times reserve and keep available out of its authorized
and unissued Common Stock, solely for issuance upon the conversion or
redemption of shares of PRIDES, as herein provided, free from
preemptive rights, such maximum number of shares of Common Stock as
shall from time to time be issuable upon the Mandatory Conversion or
Optional Conversion or redemption of all the shares of PRIDES then
outstanding.
Section 6. Definitions. As used in this Certificate of
Designations:
(i) the term "business day" shall mean any day other than
a Saturday, Sunday, or a day on which banking institutions in
the State of New York are authorized or obligated by law or
executive order to close;
(ii) the term "Closing Price", on any day, shall mean the
last sale price as shown on the New York Stock Exchange
Composite Tape on such day, or, in case no such sale takes place
on such day, the average of the reported closing bid and asked
prices regular way on the New York Stock Exchange, or, if the
Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if not
listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices of the
Common Stock on the over-the-counter market on the day in
question as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System, or a similar generally
accepted reporting service, or if not so available in such
manner, as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for that
purpose;
(iii) the term "record date" shall be such date as from
time to time fixed by the Board of Directors with respect to the
receipt of dividends, the receipt of a redemption price upon
redemption or the taking of any action or exercise of any voting
rights permitted hereby; and
(iv) the term "Trading Day" shall mean a date on which the
New York Stock Exchange (or any successor to such Exchange) is
open for the transaction of business.
Section 7. Payment of Taxes. The Corporation shall pay
any and all documentary, stamp or similar issue or transfer taxes
payable in respect of the issue or delivery of shares of Common Stock
on the redemption or conversion of shares of PRIDES pursuant to
Section 3; provided, however, that the Corporation shall not be
required to pay any tax which may be payable in respect of any
registration of transfer involved in the issue or delivery of shares
of Common Stock in a name other than that of the registered holder of
shares of PRIDES redeemed or converted or to be redeemed or
converted, and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the Corporation
the amount of any such tax or has established, to the satisfaction of
the Corporation, that such tax has been paid.
Section 8. Liquidation Rights. In the event of any
voluntary or involuntary liquidation, dissolution, or winding up of
the Corporation, and subject to the rights of holders of any other
series of Preferred Stock, the holders of outstanding shares of
PRIDES are entitled to receive the sum of $47.25 per share, plus an
amount equal to any accrued and unpaid Preferred Dividends thereon,
out of the assets of the Corporation available for distribution to
stockholders, before any distribution of assets is made to holders of
Second Preferred Stock, Common Stock or any other capital stock
ranking junior to the shares of PRIDES upon liquidation, dissolution,
or winding up. If upon any voluntary or involuntary liquidation,
dissolution, or winding up of the Corporation, the assets of the
Corporation are insufficient to permit the payment of the full
preferential amounts payable with respect to the shares of PRIDES and
all other series of Parity Preferred Stock, the holders of shares of
PRIDES and of all other series of Parity Preferred Stock shall share
ratably in any distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which they
are entitled. After payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of
PRIDES shall not be entitled to any further participation in any
distribution of assets by the Corporation. A consolidation or merger
of the Corporation with or into one or more other corporations
(whether or not the Corporation is the corporation surviving such
consolidation or merger), or a sale, lease or exchange of all or
substantially all of the assets of the Corporation shall not be
deemed to be a voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation.
Section 9. Voting Rights. (a) The holders of shares of
PRIDES shall have the right with the holders of Common Stock to vote
in the election of directors and upon each other matter coming before
any meeting of the holders of Common Stock on the basis of 4/5 of a
vote for each share of PRIDES held. The holders of shares of PRIDES
and the holders of Common Stock shall vote together as one class on
such matters except as otherwise provided by law or by the Restated
Certificate of Incorporation.
(b) In the event that dividends on the shares of PRIDES or
any other series of Preferred Stock shall be in arrears and unpaid
for six quarterly dividend periods, or if any series of Preferred
Stock (other than the PRIDES) shall be entitled for any other reason
to exercise voting rights, separate from the Common Stock, to elect
any directors of the Corporation ("Preferred Stock Directors"), the
holders of the shares of PRIDES (voting separately as a class with
holders of all other series of Preferred Stock upon which like voting
rights have been conferred and are exercisable), with each share of
PRIDES entitled to one vote on this and other matters in which
Preferred Stock votes as a group, shall be entitled to vote for the
election of two directors of the Corporation, such directors to be in
addition to the number of directors constituting the Board of
Directors immediately before the accrual of such right. Such right,
when vested, shall continue until all cumulative dividends
accumulated and payable on the shares of PRIDES and such other series
of Preferred Stock shall have been paid in full and the right of any
other series of Preferred Stock to exercise voting rights, separate
from the Common Stock, to elect Preferred Stock Directors shall
terminate or have terminated, and, when so paid and any such
termination occurs or has occurred, such right of the holders of the
shares of PRIDES shall cease. The term of office of any director
elected by the holders of the shares of PRIDES and such other series
shall terminate on the earlier of (i) the next annual meeting of
stockholders at which a successor shall have been elected and
qualified or (ii) the termination of the right of holders of the
shares of PRIDES and such other series to vote for such directors.
(c) The Corporation shall not, without the approval of the
holders of at least 66-2/3 percent of the shares of PRIDES then
outstanding: (i) amend, alter, or repeal any of the provisions of
the Restated Certificate of Incorporation or By-Laws of the
Corporation so as to affect adversely the powers, preferences or
rights of the holders of the shares of PRIDES then outstanding or
reduce the minimum time for any required notice to which the holders
of the shares of PRIDES then outstanding may be entitled (an
amendment of the Restated Certificate of Incorporation to authorize
or create, or to increase the authorized amount of, Junior Stock or
any stock of any class ranking on a parity with the PRIDES being
deemed not to affect adversely the powers, preferences, or rights of
the holders of the shares of PRIDES); (ii) authorize or create, or
increase the authorized amount of, any capital stock, or any security
convertible into capital stock of any class, ranking prior to the
shares of PRIDES either as to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up of
the Corporation; or (iii) merge or consolidate with or into any other
corporation, unless each holder of shares of PRIDES immediately
preceding such merger or consolidation shall receive or continue to
hold in the resulting corporation the same number of shares, with
substantially the same rights and preferences, as correspond to the
shares of PRIDES so held.
(d) The Corporation shall not, without the approval of the
holders of at least a majority of the shares of PRIDES then
outstanding: (i) increase the authorized number of shares of
Preferred Stock; or (ii) create any other class or classes of capital
stock of the Corporation ranking on a parity with the Preferred
Stock, either as to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up of the
Corporation, or create any stock or other security convertible into
or exchangeable for or evidencing the right to purchase any stock of
such other class ranking on a parity with the Preferred Stock, or
increase the authorized number of shares of any such other class or
amount of such other stock or security.
(e) Notwithstanding the provisions set forth in Sections
9(c) and 9(d), no such approval described therein of the holders of
the shares of PRIDES shall be required if, at or before the time when
such amendment, alteration, or repeal is to take effect or when the
authorization, creation, increase or issuance of any such prior or
parity stock or convertible security is to be made, or when such
consolidation or merger, voluntary liquidation, dissolution, or
winding up, sale, lease, conveyance, purchase, or redemption is to
take effect, as the case may be, provision is made for the redemption
of all shares of PRIDES at the time outstanding.
IN WITNESS WHEREOF, Reynolds Metals Company has caused this
certificate to be signed and attested this 20th day of January, 1994.
REYNOLDS METALS COMPANY
By: Henry S. Savedge, Jr.
Name: Henry S. Savedge, Jr.
Title: Executive Vice President
and Chief Financial Officer
Attest:
D. Michael Jones
Name: D. Michael Jones
Title: Vice President, General
Counsel and Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
R/M CAN COMPANY
AND
BEV-PAK, INC.
INTO
REYNOLDS METALS COMPANY
_____________________________________________
Pursuant to Section 253 of the
General Corporation Law of Delaware
_____________________________________________
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to the
General Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares
of each class of the capital stock of R/M CAN COMPANY and BEV-PAK, INC.,
each a Delaware corporation.
THIRD: That the Corporation, by the following resolutions of
its Board of Directors, duly adopted at a meeting held on the 21st day of
October, 1994, determined to merge into itself R/M CAN COMPANY and BEV-PAK,
INC. on the conditions set forth in such resolutions:
RESOLVED, that the corporation, as owner of all of the
outstanding shares of each class of the capital stock of
R/M Can Company and Bev-Pak, Inc., merge into itself R/M
Can Company and Bev-Pak, Inc. and assume all of their
respective liabilities and obligations effective as of
11:59 p.m. E.S.T. on December 31, 1994; and
FURTHER RESOLVED, that the Chief Executive Officer,
the Chief Operating Officer, the Chief Financial Officer,
any Vice Chairman of the Board, any Executive Vice
President, any Vice President, the Secretary and any
Assistant Secretary are each hereby authorized on behalf of
the corporation to take all such action, including, without
limitation, incurrence and payment of all fees, expenses
and other charges, and to execute and deliver all such
agreements, instruments and documents (including, without
limitation, a certificate of ownership and merger and
documents relating to employee benefit plans maintained for
employees of Bev-Pak, Inc.) which in the opinion of any of
them may be necessary or desirable to achieve the purposes
of or effect the transactions contemplated by the preceding
resolution, the taking of any such action or the execution
and delivery of any such agreements, instruments or
documents to be conclusive evidence of the authority to
take, execute or deliver the same.
This Certificate of Ownership and Merger shall be effective as
of 11:59 p.m. E.S.T. on December 31, 1994.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be affixed and this Certificate to be executed and attested by its
officers thereunto duly authorized this 29th day of November, 1994.
REYNOLDS METALS COMPANY
By _______________________________
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By: ___________________________
Assistant Secretary
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
RMC HOLDINGS, INC.
INTO
REYNOLDS METALS COMPANY
Pursuant to Section 253 of the
General Corporation Law of Delaware
REYNOLDS METALS COMPANY, a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant
to the General Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the
outstanding shares of each class of the capital stock of
RMC HOLDINGS, Inc., a Delaware corporation.
THIRD: That the Corporation, by the following
resolutions of its Board of Directors, duly adopted at a meeting
held on the 17th day of November, 1995, determined to merge into
itself RMC HOLDINGS, INC. on the conditions set forth in such
resolutions:
RESOLVED, that the corporation, as owner of all of
the outstanding shares of each class of the capital stock of
RMC Holdings, Inc., merge into itself RMC Holdings, Inc. and
assume all of its liabilities and obligations effective as
of 11:59 p.m. E.S.T. on December 15, 1995; provided, that at
any time prior to the filing of a certificate of ownership
and merger with the Delaware Secretary of State with respect
to such merger, this resolution may be rescinded by the
Board of Directors of the corporation or by the Executive
Committee thereof; and
FURTHER RESOLVED, that the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial
Officer, the Vice Chairman of the Board, any Executive Vice
President, any Vice President, the Secretary and any
Assistant Secretary are each hereby authorized on behalf of
the corporation to take all such action, including, without
limitation, incurrence and payment of all fees, expenses and
other charges, and to execute and deliver all such
agreements, instruments and documents (including, without
limitation, a certificate of ownership and merger) which in
the opinion of any of them may be necessary or desirable to
achieve the purposes of or effect the transactions
contemplated by the preceding resolution, the taking of any
such action or the execution and delivery of any such
agreements, instruments or documents to be conclusive
evidence of the authority to take, execute or deliver the
same.
FOURTH: That the foregoing resolutions of the
Corporation's Board of Directors have not been rescinded by the
Board of Directors or the Executive Committee thereof.
This Certificate of Ownership and Merger shall be
effective as of 11:59 p.m. E.S.T. on December 15, 1995.
IN WITNESS WHEREOF, the Corporation has caused its
corporate seal to be affixed and this Certificate to be executed
and attested by its officers thereunto duly authorized this 11th
day of December, 1995.
REYNOLDS METALS COMPANY
D. Michael Jones
By D. Michael Jones
______________________________
Vice President, General
Counsel and Secretary
[SEAL]
ATTEST:
Brenda A. Hart
Brenda A. Hart
By: -----------------------------
Assistant Secretary
EXHIBIT 4.2
CERTIFICATE NUMBER OF
NUMBER SHARES
REYNOLDS METALS COMPANY
Incorporated Under the Laws of the State of Delaware
CUSIP ___________
See reverse for
certain definitions
This is to certify that _________________________________
___________________________________________ is the owner of
_______________ fully paid and non-assessable shares of Common
Stock without par value of Reynolds Metals Company (the
"Corporation"), transferable only on the books of the Corporation
by the holder hereof in person or by duly authorized attorney
upon surrender of this certificate properly endorsed. This
certificate and the shares represented hereby are issued and
shall be held subject to all the provisions of the Certificate of
Incorporation, as amended, of the Corporation (a copy of which is
on file with the Transfer Agent), to all of which the holder by
acceptance hereof assents. This certificate is not valid until
countersigned by the Transfer Agent and registered by the
Registrar.
WITNESS the seal of the Corporation and the signatures of
its duly authorized officers.
Dated:___________________
_________________________ _________________________
Secretary Chairman of the Board
[SEAL]
Countersigned and Registered:
MELLON SECURITIES TRUST COMPANY
as Transfer Agent and Registrar
By:____________________________
Authorized Signature
REYNOLDS METALS COMPANY
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS A COPY OF THE STATEMENT OF THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES
THEREOF, WHICH THE CORPORATION IS AUTHORIZED TO ISSUE, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS. ANY SUCH REQUEST MAY BE MADE TO THE CORPORATION
OR THE TRANSFER AGENT.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COMM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ............Custodian..........
(Cust) (Minor)
under Uniform Gifts to Minors
Act..........................
(State)
Additional abbreviations may also be used though not in the
above list.
For Value Received __________________________________________
_______________________ hereby sell, assign and transfer unto
_____________________________________________________________
[please print or typewrite name and address including postal zip code of
assignee]
___________ Shares of the capital stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer the said stock on the
books of the within-named Corporation with full power of
substitution in the premises.
Dated _______________
__________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH
THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY
PARTICULAR.
By ______________________
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights Agreement
between Reynolds Metals Company and The Chase Manhattan Bank,
N.A., dated as of November 23, 1987 (as amended from time to
time, the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file
at the principal offices of Reynolds Metals Company. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Rights will expire
at the close of business on December 1, 1997 unless exercised or
redeemed prior thereto. Reynolds Metals Company will mail to the
holder of this certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights issued
to, or held by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may become
null and void.
EXHIBIT 4.7
STOCK OWNERSHIP GUIDELINES FOR OFFICERS
1. Scope. All Officers of Reynolds Metals Company
("Reynolds") are covered by these Guidelines. For purposes of
the preceding sentence, the term "Officer" means (a) any
individual who is elected to serve as an officer (except an
assistant officer) of Reynolds or (b) any employee of Reynolds
who is treated as an officer for compensation purposes by virtue
of having his or her compensation approved by the Compensation
Committee of the Board of Directors of Reynolds (the
"Committee").
2. Policy Statement. Reynolds expects all Officers to
maintain a significant ownership position in Reynolds Common
Stock. To further this goal, these Guidelines establish minimum
levels of stock ownership that will generally be expected of
specified Officers. No specific period of time is established
within which the minimum level must be reached. Timing of stock
acquisitions is a matter left to each Officer based on personal
financial considerations; however, to the extent minimum levels
are not reached within the periods specified in Paragraph 5, it
is the intent of these Guidelines that the provisions of
Paragraph 6 be applied to assist Officers in reaching the
applicable minimum level.
3. Minimum Stock Ownership Levels. (a) Each Officer
is expected to own at a minimum the applicable amount of Reynolds
Common Stock (or its equivalent) set forth in the following
schedule:
Chief Executive Officer 3 times Salary
President, any Vice Chairman, and
any Executive Vice President 2 times Salary
Any Other Officer 1 times Salary
(b) "Salary" means the base salary in effect for an
Officer on a given Valuation Date (as defined below), and does
not include any incentive payments or the value of any other
supplemental payments or benefits, whether paid in cash or
otherwise.
(c) Ownership of Reynolds Common Stock (or its
equivalent) will include:
i. Shares owned by the Officer and by any immediate
family member who shares the same household as the Officer;
ii. Shares contributed or purchased for a participant
in the Reynolds Savings and Investment Plan for Salaried
Employees and the Reynolds Tax Reduction Act Stock Ownership Plan
for Salaried Employees;
iii. Any other shares deemed to be "beneficially owned"
by the Officer for purposes of the reporting and liability
provisions of Section 16 of the Securities Exchange Act of 1934
and the rules promulgated thereunder; and
iv. Any shares of phantom stock of Reynolds allocated
to the account of an Officer under any benefit plan maintained by
Reynolds for Officers and other key executives, including without
limitation the Reynolds Benefit Restoration Plan for Savings and
Investment Plan, the Reynolds Salary Deferral Plan for
Executives, and the Reynolds New Management Incentive Deferral
Plan.
4. Valuation Date. Each December 31 will be a
Valuation Date. Ownership will be calculated for each Officer as
of each Valuation Date to determine compliance with the minimum
stock ownership levels in Paragraph 3. The closing price of
Reynolds Common Stock on the New York Stock Exchange Composite
Tape on the Valuation Date (or on the last business day preceding
such Valuation Date, if the Valuation Date is not itself a
business day) will be used to calculate achievement of the
minimum levels. As soon as practicable after each Valuation
Date, each Officer who is not in compliance with the applicable
minimum stock ownership level will be so notified.
5. Period for Compliance. Each Officer is expected to
meet the applicable minimum stock ownership level as soon as
reasonably practicable. Effective December 31, 1995, the
provisions of Paragraph 6 will apply to each individual who is an
Officer on the date these Guidelines are adopted. After the date
these Guidelines are adopted, the provisions of Paragraph 6 will
apply to each individual who becomes an Officer and each Officer
who is promoted to a new position requiring a higher minimum
stock ownership level effective December 31 of such Officer's
first full calendar year in the new position.
6. Consequences of Noncompliance. (a) If unusual and
extenuating circumstances beyond an Officer's control make it
difficult for the Officer to meet the applicable minimum stock
ownership level, the Committee may waive compliance with regard
to that Officer.
(b) Except as provided in Paragraphs 6(c) and 6(d), and
unless the Committee has waived compliance with regard to an
Officer in accordance with Paragraph 6(a), if an Officer does not
meet the applicable minimum stock ownership level by the date set
forth in Paragraph 5, then the next award to such Officer under
the Reynolds Performance Incentive Plan will be paid part in cash
and part in the form of shares of Reynolds Common Stock. The
number of shares issued will be equal to the number of shares
that would have enabled the Officer to meet the applicable
minimum stock ownership level as of the most recent Valuation
Date; provided, however, that in no event will more than half of
the value of the Officer's award in any year be paid in the form
of shares.
(c) The mandatory share award provisions of Paragraph
6(b) will not apply to the extent an Officer has already elected
under the Reynolds New Management Incentive Deferral Plan (i) to
defer a portion of his or her award under the Reynolds
Performance Incentive Plan and (ii) to have such deferred award
be credited with additional income based on shares of phantom
stock of Reynolds.
(d) To the extent an Officer's award under the Reynolds
Performance Incentive Plan is subject to a mandatory deferral
under the Reynolds New Management Incentive Deferral Plan, the
mandatory share award provisions of Paragraph 6(b) will be
implemented by deferring under the Reynolds New Management
Incentive Deferral Plan the payment that would otherwise be made
in the form of stock in accordance with Paragraph 6(b) and having
such deferred award be credited with additional income based on
shares of phantom stock of Reynolds.
7. Administration and Interpretation. The Committee
reserves the right to interpret, change, amend, modify or
terminate these Guidelines at any time and from time to time,
either to take into account changes in compensation or benefits
for Officers or for any other reason.
8. Equivalent Securities. For purposes of these
Guidelines, any securities convertible into Reynolds Common Stock
will be deemed equivalent to the number of shares of Reynolds
Common Stock into which they could be converted at the applicable
Valuation Date.
9. Effective Date. These Guidelines will become
effective as of their adoption; provided, however, that Paragraph
6 will have no further force and effect if implementing
amendments to the Reynolds Performance Incentive Plan are not
approved at the 1995 annual meeting of Reynolds shareholders.
EXHIBIT 5
February 14, 1996
Reynolds Metals Company
6601 West Broad Street
Richmond, Virginia 23230
Gentlemen:
I am Vice President, General Counsel and Secretary of
Reynolds Metals Company (the "Company"). I, together with
attorneys acting under my supervision, have acted as counsel to
the Company in connection with, and have participated in the
preparation of, a Registration Statement on Form S-8 to be filed
with the Securities and Exchange Commission (the "Registration
Statement") relating to the registration under the Securities Act
of 1933 of 100,000 shares (the "Shares") of the Company's Common
Stock, without par value, to be offered under the Reynolds Metals
Company Performance Incentive Plan (the "Plan"). I, or attorneys
under my supervision, have reviewed the Plan and such other
documents as I have deemed appropriate for purposes of this
opinion.
Based on the foregoing, it is my opinion that the
Shares have been validly authorized and, when issued and
delivered in accordance with the terms of the Plan, will be
legally issued, fully paid and non-assessable.
I express no opinion as to the laws of jurisdictions
other than the laws of the Commonwealth of Virginia, the General
Corporation Law of the State of Delaware, and the federal laws of
the United States of America.
I consent to the reference to me under Item 5 in the
Registration Statement and to the filing of a copy of this
opinion as an exhibit to the Registration Statement.
Very truly yours,
D. Michael Jones
D. Michael Jones
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under Item 3 in the
Registration Statement (Form S-8), and under the caption
"Experts" in the related Prospectus, pertaining to the Reynolds
Metals Company Performance Incentive Plan and to the
incorporation by reference therein of our report dated February
17, 1995, with respect to the consolidated financial statements
of Reynolds Metals Company included in its Annual Report (Form
10-K) for the year ended December 31, 1994, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
ERNST & YOUNG LLP
Richmond, Virginia
February 7, 1996
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for her and in her name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
Patricia C. Barron
------------------------
Patricia C. Barron
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
William O. Bourke
--------------------------
William O. Bourke
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
John R. Hall
---------------------
John R. Hall
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
Robert L. Hintz
-------------------------
Robert L. Hintz
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
William H. Joyce
-----------------------
William H. Joyce
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for her and in her name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
Mylle Bell Mangum
------------------------
Mylle Bell Mangum
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
D. Larry Moore
------------------------
D. Larry Moore
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
James M. Ringler
--------------------------
James M. Ringler
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
Robert L. Vlasic
------------------------
Robert L. Vlasic
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints D. Michael Jones and Brenda A.
Hart, or either of them, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities (including without limitation in any capacity on
behalf of Reynolds Metals Company (the "Company")), to sign any
and all Registration Statements on Form S-8, or on such other
form as may be appropriate (the "Statements"), for registration
of up to 100,000 shares of Common Stock, without par value, of
the Company to be issued and sold under the Reynolds Metals
Company Performance Incentive Plan, as amended and restated
effective January 1, 1996, and any and all amendments (including
post-effective amendments) to the Statements, and to file the
same, with all exhibits thereto, and all prospectuses and
documents in connection therewith, with the Securities and
Exchange Commission; granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
This Power of Attorney shall expire on the 28th day of
February, 1997.
IN WITNESS WHEREOF, the undersigned has executed and
delivered this Power of Attorney on the 19th day of January,
1996.
Joe B. Wyatt
---------------------------
Joe B. Wyatt
