SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended September 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-1430
REYNOLDS METALS COMPANY
A Delaware Corporation
(I.R.S. Employer Identification No. 54-0355135)
6601 West Broad Street, P. O. Box 27003, Richmond, Virginia 23261-7003
Telephone Number (804) 281-2000
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the Registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes _X_ No ___
As of October 31, 1997, the Registrant had 73,908,836 shares of
Common Stock, no par value, outstanding and entitled to vote.
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
<TABLE>
CONSOLIDATED STATEMENT OF INCOME (UNAUDITED)
- ------------------------------------------------------------------------------------------
Reynolds Metals Company
<CAPTION>
Quarters ended Nine months ended
September 30 September 30
- -----------------------------------------------------------------------------------------
(In millions, except per share amounts) 1997 1996 1997 1996
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenues
Net sales $1,716 $1,751 $5,114 $5,236
Equity, interest and other income 1 6 13 31
- -----------------------------------------------------------------------------------------
1,717 1,757 5,127 5,267
- -----------------------------------------------------------------------------------------
Costs and expenses
Cost of products sold 1,410 1,482 4,233 4,360
Selling, administrative and general expenses 95 106 304 322
Depreciation and amortization 92 92 277 273
Interest 40 39 116 123
Operational restructuring effects - net - - (31) 37
- -----------------------------------------------------------------------------------------
1,637 1,719 4,899 5,115
- -----------------------------------------------------------------------------------------
Income before income taxes and cumulative
effect of accounting change 80 38 228 152
Taxes on income 25 12 75 49
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Income before cumulative effect of accounting change 55 26 153 103
Cumulative effect of accounting change - - - (15)
- -----------------------------------------------------------------------------------------
Net income 55 26 153 88
Preferred stock dividends - 9 - 27
- -----------------------------------------------------------------------------------------
Net income available to common stockholders $ 55 $ 17 $ 153 $ 61
=========================================================================================
Earnings per share
Average shares outstanding 74 64 73 64
Income before cumulative effect of accounting change $0.74 $0.26 $2.09 $1.19
Cumulative effect of accounting change - - - (0.24)
- -----------------------------------------------------------------------------------------
Net income $0.74 $0.26 $2.09 $0.95
=========================================================================================
Cash dividends per common share $0.35 $0.35 $1.05 $1.05
=========================================================================================
See notes beginning on page 5.
</TABLE>
<PAGE>
<TABLE>
CONDENSED CONSOLIDATED BALANCE SHEET (UNAUDITED)
- ----------------------------------------------------------------------------------------
Reynolds Metals Company
<CAPTION>
September 30 December 31
- ----------------------------------------------------------------------------------------
(millions) 1997 1996
- ----------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 68 $ 38
Receivables, less allowances of $17 (1996 - $18) 1,010 961
Inventories 816 787
Prepaid expenses and other 92 87
- ----------------------------------------------------------------------------------------
Total current assets 1,986 1,873
Unincorporated joint ventures and associated companies 1,371 1,337
Property, plant and equipment 6,503 6,813
Less allowances for depreciation and amortization 3,513 3,576
- ----------------------------------------------------------------------------------------
2,990 3,237
Deferred taxes and other assets 1,009 1,069
- ----------------------------------------------------------------------------------------
Total assets $7,356 $7,516
========================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable, accrued and other liabilities $ 980 $1,020
Short-term borrowings 76 217
Long-term debt 127 96
- ----------------------------------------------------------------------------------------
Total current liabilities 1,183 1,333
Long-term debt 1,714 1,793
Postretirement benefits 1,063 1,087
Environmental, deferred taxes and other liabilities 660 669
Stockholders' equity
Common stock 1,521 1,451
Retained earnings 1,296 1,220
Cumulative currency translation adjustments (81) (37)
- ----------------------------------------------------------------------------------------
Total stockholders' equity 2,736 2,634
- ----------------------------------------------------------------------------------------
Total liabilities and stockholders' equity $7,356 $7,516
========================================================================================
See notes beginning on page 5.
</TABLE>
<PAGE>
<TABLE>
CONDENSED STATEMENT OF CASH FLOWS (UNAUDITED)
- --------------------------------------------------------------------------------------
Reynolds Metals Company
<CAPTION>
Nine Months Ended
September 30
- --------------------------------------------------------------------------------------
(millions) 1997 1996
- --------------------------------------------------------------------------------------
<S> <C> <C>
Operating activities
Net Income $ 153 $ 88
Adjustments to reconcile to net cash provided by
operating activities:
Depreciation and amortization 277 273
Operational restructuring effects - net (40) 37
Cumulative effect of accounting change - 15
Changes in operating assets and liabilities net of effects of
dispositions:
Accounts payable, accrued and other liabilities 3 (71)
Receivables (161) (7)
Inventories (190) 50
Other 16 (141)
- --------------------------------------------------------------------------------------
Net cash provided by operating activities 58 244
Investing activities
Capital investments:
Operational (103) (135)
Strategic (84) (185)
Proceeds from sales of assets 343 8
Other (5) 5
- --------------------------------------------------------------------------------------
Net cash provided by (used in) investing activities 151 (307)
Financing activities
Increase (decrease) in borrowings (principally short-term) (173) 145
Cash dividends paid (73) (94)
Stock issues and other 67 (5)
- --------------------------------------------------------------------------------------
Net cash provided by (used in) financing activities (179) 46
Cash and cash equivalents
Net increase (decrease) 30 (17)
At beginning of period 38 39
- --------------------------------------------------------------------------------------
At end of period $ 68 $ 22
======================================================================================
See notes beginning on page 5.
</TABLE>
<PAGE>
REYNOLDS METALS COMPANY AND CONSOLIDATED SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Quarters and Nine Months Ended September 30, 1997 and 1996
NOTE 1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial
statements are presented in accordance with generally accepted
accounting principles for interim financial information and with
the instructions to Form 10-Q and Article 10 of Regulation S-X.
Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles
for complete financial statements. In the opinion of management,
the statements include all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation.
Operating results for the interim periods of 1997 are not
necessarily indicative of the results that may be expected for
the year ending December 31, 1997. For further information,
refer to the consolidated financial statements and footnotes
thereto included in the Company's annual report on Form 10-K for
the year ended December 31, 1996. Certain amounts have been
reclassified to conform to the 1997 presentation.
NOTE 2. ACCOUNTING POLICIES
Earnings Per Share
In the first quarter of 1997, the Financial Accounting Standards
Board issued Statement No. 128, "Earnings Per Share." Statement
No. 128 requires a change in the method currently used to
calculate earnings per share (EPS). The change eliminates the
presentation of primary EPS and requires the presentation of
basic EPS. The principal difference between these methods is
that common stock equivalents are not considered in the
computation of basic EPS. The statement also requires the
presentation of diluted EPS. Diluted EPS reflects the potential
dilution that could occur if securities, or other contracts to
issue common stock, were exercised or converted into common stock
or resulted in the issuance of common stock that then shared in
the earnings of the Company. The Company is required to adopt
this statement beginning with its 1997 fourth-quarter and year-
end financial statements, at which time all prior period EPS
presentations will be restated. The adoption will not have a
material impact on EPS amounts reported for the current interim
periods or any prior periods.
Comprehensive Income
In the second quarter of 1997, the Financial Accounting Standards
Board issued Statement No. 130, "Reporting Comprehensive Income,"
which must be adopted in the first quarter of 1998. This
statement establishes standards for reporting and displaying
comprehensive income and its components in the financial
statements. Comprehensive income includes net income and items
of other comprehensive income. For the Company, the components
of other comprehensive income will consist primarily of period-to-
period changes in the balances of the cumulative currency
translation and pension liability adjustments. The balances for
the cumulative currency translation and pension liability
adjustments are currently reflected in the stockholders' equity
section of the balance sheet.
Segments
Also in the second quarter of 1997, the Financial Accounting
Standards Board issued Statement No. 131, "Disclosures about
Segments of an Enterprise and Related Information." This
statement establishes new standards for defining the Company's
segments and disclosing information about them. It requires that
the segments be determined based on the internal structure and
reporting of the Company's operations. The statement must be
adopted for 1998 year-end financial statements. The Company
expects to adopt this statement early, beginning with its 1997
year-end financial statements.
<PAGE>
NOTE 3. OPERATIONAL RESTRUCTURING
The Company is conducting a review of all its operations and
businesses. A number of alternatives are being considered
including, among other things, asset sales, spin-offs, and the
forming of strategic alliances to increase scale. Certain
actions, if taken, could affect the Company's results and ongoing
operating performance.
In 1997, the Company has sold the following assets:
- - residential construction products business
- - an aluminum reclamation plant in Virginia
- - aluminum extrusion plants in Virginia and Texas
- - coal properties in Kentucky
- - one-half of its wholly owned interest in a rolling mill and
related assets in Canada
- - an aluminum powder and paste plant in Kentucky
The Company has recognized pre-tax gains of $56 million related
to these 1997 sales. Proceeds from these sales were used to
reduce debt and to temporarily support other investing
activities.
Also in 1997, the Company recorded a pre-tax charge of $25
million for termination benefits applicable to approximately 500
corporate headquarters employees. Another 100 positions are
being reduced through attrition. Most of the cash requirements
relating to the termination benefits are expected to be paid in
1997.
The Company has also signed non-binding letters of intent to sell
the following:
- - two extrusion plants in Canada
- - U.S. recycling operations
- - a rolling mill and related assets in Alabama (with an
estimated after-tax loss in the range of $225 to $250 million, a
substantial portion of which relates to employee termination
costs)
- - a sheet and plate plant in Illinois
These transactions are subject to regulatory and board approvals
(in certain cases), negotiation and execution of definitive
agreements, and other customary closing conditions. The Company
hopes to complete the sales of the Canadian facilities and the
U.S. recycling operations by the first quarter of 1998. The
completion date of the sale of the Alabama facilities is
uncertain due to continuing regulatory review.
NOTE 4. CONTINGENT LIABILITIES
As previously disclosed in the Company's 1996 Form 10-K, the
Company is involved in various worldwide environmental
improvement activities resulting from past operations, including
designation as a potentially responsible party (PRP), with
others, at various Environmental Protection Agency-designated
Superfund sites. The Company has recorded amounts (on an
undiscounted basis) which, in management's best estimate, are
expected to be sufficient to satisfy anticipated costs of known
remediation requirements.
Estimated costs for future environmental compliance and
remediation are necessarily imprecise because of factors such as:
- - continuing evolution of environmental laws and regulatory
requirements
- - availability and application of technology
- - identification of presently unknown remediation requirements
- - cost allocations among PRPs
<PAGE>
NOTE 4. CONTINGENT LIABILITIES - - continued
Further, it is not possible to predict the amount or timing of
future costs of environmental remediation that may subsequently
be determined. Based on information presently available, such
future costs are not expected to have a material adverse effect
on the Company's competitive or financial position or its ongoing
results of operations. However, such costs could be material to
results of operations in a future interim or annual reporting
period.
NOTE 5. CANADIAN REYNOLDS METALS COMPANY, LTD. AND REYNOLDS
ALUMINUM COMPANY OF CANADA, LTD.
Financial statements and financial statement schedules for
Canadian Reynolds Metals Company, Ltd. and Reynolds Aluminum
Company of Canada, Ltd. have been omitted because certain
securities registered under the Securities Act of 1933, of which
these entities are obligors (thus subjecting them to reporting
requirements under Section 13 or 15(d) of the Securities Exchange
Act of 1934), are fully and unconditionally guaranteed by
Reynolds Metals Company. Financial information relating to these
companies is presented herein in accordance with Staff Accounting
Bulletin 53 as an addition to the footnotes to the financial
statements of Reynolds Metals Company. Summarized financial
information is as follows:
Canadian Reynolds Metals Company, Ltd.
Quarters Ended Nine Months Ended
September 30 September 30
-----------------------------------------
1997 1996 1997 1996
-----------------------------------------
Net Sales:
Customers $ 69 $ 53 $168 $159
Parent and related companies 161 140 521 463
-----------------------------------------
$230 $193 $689 $622
Cost of products sold 177 172 539 505
Net income $ 31 $ 7 $ 86 $ 59
September 30 December 31
1997 1996
------------------------------
Current assets $ 358 $ 189
Noncurrent assets 1,211 1,225
Current liabilities (113) (50)
Noncurrent liabilities (581) (624)
Reynolds Aluminum Company of Canada, Ltd.
Quarters Ended Nine Months Ended
September 30 September 30
----------------------------------------
1997 1996 1997 1996
----------------------------------------
Net Sales:
Customers $150 $133 $408 $392
Parent and related companies 156 119 491 396
----------------------------------------
$306 $252 $899 $788
Cost of products sold 247 226 728 662
Net income $ 32 $ 8 $ 90 $ 55
<PAGE>
NOTE 5. CANADIAN REYNOLDS METALS COMPANY, LTD. AND REYNOLDS
ALUMINUM COMPANY OF CANADA, LTD. -- continued
Reynolds Aluminum Company of Canada, Ltd. -- continued
September 30 December 31
1997 1996
----------------------------------
Current assets $ 386 $ 240
Noncurrent assets 1,307 1,370
Current liabilities (170) (95)
Noncurrent liabilities (625) (656)
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following information should be read in conjunction with the
consolidated financial statements and related footnotes included
in the Company's 1996 Form 10-K along with the consolidated
financial statements and related footnotes included in and
referred to in this report. In the tables, dollars are in
millions, except per share and per pound amounts, and shipments
are in thousands of metric tons. A metric ton is equivalent to
2,205 pounds.
Management's Discussion and Analysis contains forecasts,
projections, estimates, statements of management's plans and
objectives for the Company and other forward-looking statements.
Please refer to the "Risk Factors" section beginning on page 16.
In that section we have summarized factors that could cause
actual results to differ materially from those projected in a
forward-looking statement or affect the extent to which a
particular projection is realized.
RESULTS OF OPERATIONS
Net income improved 112% in the third quarter and 74% in the
first nine months of 1997 as compared to the same periods of
1996. The most significant contributor to profit improvement in
both 1997 periods was continued progress in our performance
improvement program. Conversion costs were reduced by $37
million in the third quarter of 1997, bringing the total
conversion cost reduction to $85 million for the first nine
months of this year. This cost reduction, combined with
increased sales volumes in our ongoing businesses and lower
interest and selling, general and administrative expenses, has
more than overcome the impact of weak pricing for fabricated
aluminum products throughout 1997.
Third Quarter Nine Months
1997 1996 1997 1996
---------------------------------
Net income $ 55 $ 6 $ 153 $ 88
Special items included in net income:
LIFO inventory liquidations - 6 - 9
Operational restructuring effects -- net - - 19 (23)
Cumulative effect of accounting change - - - (15)
Earnings per share $0.74 $0.26 $2.09 $0.95
Special items included in earnings per share:
LIFO inventory liquidations - .10 - .15
Operational restructuring effects -- net - - .27 (.36)
Cumulative effect of accounting change - - - (.24)
Operational restructuring effects primarily resulted from:
- - the sale in 1997 of our residential construction products
business, an aluminum reclamation plant, two aluminum extrusion
plants and coal properties resulting in an after-tax gain of $34
million ($.48 per share)
- - an after-tax charge of $15 million ($.21 per share) in 1997
for termination benefits for approximately 500 corporate
headquarters employees
- - an after-tax charge in 1996 principally for employee
termination benefits associated with the closing of a can plant
in Texas
The accounting change resulted from adopting a new accounting
standard in the first quarter of 1996 that required us to
recognize a loss for impaired assets held for sale, principally
undeveloped land.
<PAGE>
RESULTS OF OPERATIONS -- continued
SHIPMENTS AND NET SALES
Third Quarter
------------------------------------------
1997 1996
------------------------------------------
Shipments Net Sales Shipments Net Sales
------------------------------------------
Finished Products and Other Sales
Packaging and containers
Aluminum 95 $ 496 88 $ 463
Nonaluminum 152 155
Other aluminum 36 117 44 146
Other nonaluminum 100 127
------------------------------------------
131 865 132 891
------------------------------------------
Production and Processing
Primary aluminum 124 224 109 172
Sheet and plate 100 295 89 278
Extrusions 47 154 49 170
Other aluminum 21 80 41 119
Other nonaluminum 98 121
------------------------------------------
292 851 288 860
------------------------------------------
Total 423 $1,716 420 $1,751
==========================================
Average realized price per pound:
Fabricated aluminum products $1.76 $1.81
Primary aluminum $0.82 $0.72
Nine Months
-------------------------------------------
1997 1996
-------------------------------------------
Shipments Net Sales Shipments Net Sales
-------------------------------------------
Finished Products and Other Sales
Packaging and containers
Aluminum 286 $1,474 267 $ 1,403
Nonaluminum 422 434
Other aluminum 107 342 123 421
Other nonaluminum 298 393
------------------------------------------
393 2,536 390 2,651
------------------------------------------
Production and Processing
Primary aluminum 308 552 290 485
Sheet and plate 295 864 280 875
Extrusions 155 513 152 528
Other aluminum 94 316 123 359
Other nonaluminum 333 338
------------------------------------------
852 2,578 845 2,585
------------------------------------------
Total 1,245 $5,114 1,235 $5,236
==========================================
Average realized price per pound:
Fabricated aluminum products $1.75 $1.81
Primary aluminum $0.81 $0.76
<PAGE>
RESULTS OF OPERATIONS -- continued
SHIPMENTS AND NET SALES -- continued
Finished Products and Other Sales
Shipments of aluminum packaging and containers (measured in
metric tons of aluminum) were higher in both periods. Customer
growth and the addition of several soft drink accounts resulted
in improvements in the can business. In addition to cans,
shipments of aluminum packaging and consumer products also
improved in each of the 1997 periods (third quarter -- up 11%,
nine months -- up 8%) due to strong demand.
Net sales of aluminum packaging and containers improved primarily
on the higher volume of shipments for both 1997 periods. Prices
were slightly lower for cans and aluminum packaging and consumer
products in each 1997 period. The reduction in nonaluminum
revenues was due to lower sales of can machinery and tolling
services. This reduction was minimized due to increases in net
sales of printing cylinders and plastic packaging products.
Shipments of other aluminum products dropped because of the sale
of our residential construction products business. A strong
increase in shipments of aluminum distribution products for both
1997 periods (third quarter -- up 12%, nine months -- up 12%)
helped reduce the effect of the sale of the construction products
business. The strength in shipments of aluminum distribution
products represents improved economic conditions and growth in
market share.
Net sales of other aluminum and nonaluminum products were lower
for both 1997 periods because of the sale of our residential
construction products business. Lower net sales of stainless
steel distribution products were also realized in each period due
to declining prices. A major competitive factor in these lower
prices has been imports.
Production and Processing
Primary aluminum shipments fluctuate from period to period
because of variations in internal requirements and changes in
customer demand for value-added foundry ingot, sheet ingot and
billet. Improved prices for primary aluminum in 1997 resulted
from strong demand and a lowering of worldwide aluminum
inventories.
Shipments and net sales of fabricated aluminum products in our
Production and Processing group were affected by the sales of
operations. Specifically, the sales of an aluminum sheet plant
(in connection with the sale of our residential construction
products business), two aluminum extrusion plants and an aluminum
reclamation plant lowered shipments and net sales in the Sheet
and Plate, Extrusions and Other Aluminum categories in both 1997
periods. These asset sales reduced shipments by 22,000 metric
tons and net sales by $50 million in the third quarter of 1997
and 30,000 metric tons and $63 million in the nine months of
1997.
Shipments of fabricated aluminum products from remaining
operations increased 11,000 metric tons (7%) in the third quarter
of 1997 and 19,000 metric tons (4%) in the nine month period of
1997. In the third quarter of 1997, the increases were led by
strong demand for can stock, aluminum plate, European rolled
products, aluminum rod, and products for the transportation
market. In the nine-month period of 1997, shipments increased
for aluminum plate, European rolled products, aluminum rod,
aluminum wheels and other products for the transportation market.
Shipping levels benefited from favorable economic conditions both
domestically and in most European countries.
<PAGE>
RESULTS OF OPERATIONS -- continued
SHIPMENTS AND NET SALES -- continued
Production and Processing -- continued
Net sales of fabricated aluminum products from remaining
operations were up $12 million in the third quarter of 1997 and
decreased $6 million in the nine months of 1997. Lower prices
for most products in each of the 1997 periods reduced the impact
of the higher shipping volumes.
Net sales of other nonaluminum products to customers were lower
because of greater internal consumption of alumina in both
periods of 1997. In the nine-month period of 1997, increased
technology sales helped offset the decline in customer alumina
sales.
EQUITY, INTEREST AND OTHER INCOME
The decline in this category of revenue in both 1997 periods was
due to lower amounts of equity income. Equity income was lower
because of increased competition for can operations in Latin
America and losses relating to the start-up of a Chinese foil and
extrusion operation.
COSTS AND EXPENSES
Cost of products sold decreased in both 1997 periods because of:
- - lower costs for certain purchased materials
- - improved capacity utilization at fabricating facilities
- - divestitures
- - performance improvement programs
These benefits were somewhat offset by:
- - higher costs of aluminum purchases in both 1997 periods
- - higher maintenance costs in the third quarter of 1997 at an
alumina facility
- - higher start-up, operational and research costs in our wheel
plants in both 1997 periods
- - higher costs for labor during the nine-month period of 1997
(because of new contracts entered into in the second quarter of
1996)
Costs in 1996 also benefited from the liquidation of certain last-
in, first-out (LIFO) inventories. The liquidation decreased
costs $10 million in the third quarter of 1996 and $15 million in
the nine-month period of 1996.
Selling, administrative and general expenses were lower in both
1997 periods as a result of savings from the Company's
restructuring efforts.
Interest expense decreased in the nine month period of 1997
because of lower amounts of debt outstanding.
On a quarterly basis, the Company updates the status of all
significant existing or potential environmental issues, develops
or revises estimates of costs to satisfy known remediation
requirements and adjusts its accruals accordingly. Based on
information presently available, such future costs are not
expected to have a material adverse effect on our competitive or
financial position or our ongoing results of operations.
However, it is not possible to predict the amount or timing of
future costs of environmental requirements that may subsequently
be determined. Such costs could be material to future quarterly
or annual results of operations.
<PAGE>
RESULTS OF OPERATIONS -- continued
COSTS AND EXPENSES -- continued
Various suits and claims are pending against the Company. In the
opinion of management, after consultation with counsel,
disposition of these suits and claims, either individually or in
the aggregate, will not have a material adverse effect on our
competitive or financial position or our ongoing results of
operations. No assurance can be given, however, that the
disposition of one or more of such suits or claims in a
particular reporting period will not be material in relation to
the reported results for such period.
TAXES ON INCOME
The effective tax rates reflected in the income statement differ
from the U.S. federal statutory rate because of foreign taxes and
the effects of percentage depletion allowances.
LIQUIDITY AND CAPITAL RESOURCES
WORKING CAPITAL
September 30 December 31
1997 1996
----------------------------
Working capital $803 $540
Ratio of current assets to current liabilities 1.7/1 1.4/1
OPERATING ACTIVITIES
Cash from operations was used to fund receivables and
inventories. The increase in receivables reflects higher sales
activity. Inventories increased in anticipation of continuing
strong shipping volumes.
INVESTING ACTIVITIES
Cash provided by investing activities resulted from sales of
assets.
Capital investments totaled $187 million in the first nine months
of 1997. This amount includes $103 million for operating
requirements (replacement equipment, environmental control
projects, etc.). The remainder was for strategic projects
carried forward from 1996, including:
- - the construction of a forged wheel plant in Virginia
- - the expansion and modernization of can, foil and plastic
film plants
- - the modernization of a primary aluminum plant in New York
In the third quarter of 1997, the Company announced plans to
spend approximately $330 million on an expansion of the Worsley
Alumina Refinery in Australia. The expansion will increase the
annual capacity of the facility by 65% to 3.1 million metric
tons. Construction is expected to begin in the fourth quarter of
1997 and completion is expected in the second quarter of 2000.
The Company expects to fund the cost of the project with cash
generated from operations. The Company holds a 56% interest in
this joint venture.
FINANCING ACTIVITIES
Debt was reduced with part of the proceeds from sales of assets.
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES -- continued
FINANCING ACTIVITIES -- continued
The Company extended the terms of a $150-million Canadian bank
credit agreement to 2001. The agreement originally was to have
matured in early 1998.
The Company believes its available financial resources, together
with internally generated funds, are sufficient to meet its
present and future business needs. The Company continues to
exceed the financial ratio requirements contained in its
financing arrangements and expects to do so in the future. At
September 30, 1997, $113 million of the Company's $1.65-billion
shelf registration remained available for the issuance of debt
securities.
PORTFOLIO REVIEW
We are conducting a review of all our operations and businesses
with the goals of improving focus and profitability,
strengthening our financial position, and thereby increasing
shareholder value. The results of this review are expected to
improve the quality of earnings in the years ahead during all
parts of the business cycle. Major elements of the review are as
follows:
Restructure
We have decided to stay in our bauxite, alumina, carbon products
and primary aluminum businesses because of their competitive cost
bases. We will keep and grow our distribution, specialty
building products, and aluminum wheel businesses. We have
determined that certain operations would not earn an adequate
return through the business cycle and therefore have decided to
take the following actions:
- - We have exited the residential construction products
business.
- - We have completed the sale of two U.S. extrusion plants and
a U.S. powder and paste plant. We have signed non-binding
letters of intent to sell two Canadian extrusion plants, our U.S.
recycling operations and our sheet and plate plant in Illinois.
We are also evaluating alternatives for our extrusion operations
in Spain.
- - With respect to our rolling operations, we have signed a
letter of intent to sell our Alabama can stock complex (with an
estimated after-tax loss in the range of $225 to $250 million).
We are evaluating a number of alternatives for our European
rolling operations.
- - We formed a 50-50 joint venture to operate and expand our
rolling mill in Quebec, Canada and to operate our coil coating
facility in Ontario, Canada. The rolling mill is a supplier of
finstock to the automotive market and foil to the packaging
market.
- - We have sold an aluminum reclamation plant in Virginia and
our coal properties in Kentucky.
We have not yet reached a decision about our can and packaging
businesses and are continuing to evaluate three options:
- - Spin-off cans and packaging together
- - Spin-off one business or the other
- - Sell a portion of these businesses
<PAGE>
PORTFOLIO REVIEW -- continued
Restructure -- continued
Keeping all of these businesses is not an option we are
considering. Similarly, spinning or divesting all of these
businesses will not necessarily be the final outcome.
Reorganize
We have reorganized the Company to streamline our business to
focus on global markets that hold the most promising
opportunities for profitable growth. The result of these changes
was the formation of the following worldwide, market-focused
businesses:
- - Base Materials (consisting of bauxite, alumina, primary
aluminum and carbon operations)
- - Construction and Distribution
- - Transportation
- - Packaging and Consumer
- - Cans
In addition, we have formed a new unit that will focus on
emerging markets, such as China, Russia and India.
Our reorganization has resulted in personnel reductions in
various operational and staff functions at our corporate
headquarters. The number of positions involved is approximately
600, which includes 100 positions that are being reduced through
attrition. As a result, we expect to reduce corporate overhead
costs by approximately $40 million annually.
Strengthen Balance Sheet
In addition to improving our future earnings potential, our
actions will enable us to strengthen our balance sheet. We plan
to use a portion of the anticipated proceeds from asset sales to
reduce debt. This should result in a reduction in our annual
interest expense and an improvement in our debt-to-equity ratio.
We expect to be in an excellent position to fund future growth
and to consider other methods of improving our financial
position, such as stock repurchases, that were not within our
reach before.
We will continue our unrelenting focus on cost and inventory
control. Using 1995 as our base year, our ultimate inventory
reduction goal is $300 million by 1999. We have achieved about
one-half of that goal.
Over the next several years, we are committed to a capital
spending program of $300 million average per year, excluding
acquisitions. For the full year 1997, we expect to spend
approximately $275 million. Approximately 45% of this amount is
for operating requirements. The remainder is for continuing
expenditures for those performance improvement and strategic
investment projects already underway, and the expansion program
at our alumina refinery in Australia. For the full year 1997,
cash generated from operations is expected to exceed cash needed
for capital investments.
Grow
We have begun a strategic planning process designed to establish
future growth programs. There are several excellent investment
opportunities currently available to us. These include the
significant expansion program at our alumina refinery in
Australia that is expected to begin in the fourth quarter of
1997, additional investment in our wheel business, and several
projects in our packaging business. While we have no current
plans to invest in any major greenfield expansions of our
smelting business, there will be opportunities for high-return
cost reduction projects in our smelting operations.
<PAGE>
PORTFOLIO REVIEW -- continued
Grow -- continued
In addition to these internal opportunities, we will be looking
for high-return acquisition projects in several of our
businesses. One focus will be to participate in the ongoing
consolidation of the metals distribution industry. Additionally,
we will look for opportunities to grow our packaging business
through U.S. and foreign acquisitions.
Conclusion and Outlook
We expect the results of these actions to contribute to earnings
this year and to have an even greater impact in 1998. We hope to
announce all of our remaining restructuring plans in the near
future. It will then take part of 1998 to complete the
transactions. After our restructuring is complete, we will be
positioned to deliver a higher quality of earnings throughout the
cycle and thereby significantly enhance shareholder value.
RISK FACTORS
This section should be read in conjunction with Part I, Items 1
(Business), 3 (Legal Proceedings) and 7 (Management's Discussion
and Analysis of Financial Condition and Results of Operations) of
the Company's 1996 Form 10-K; Part II, Item 1 (Legal Proceedings)
of the Company's reports on Form 10-Q for the first and second
quarters of 1997; and the preceding portions of this Item.
This report contains (and oral communications made by or on
behalf of the Company may contain) forecasts, projections,
estimates, statements of management's plans and objectives for
the Company and other forward-looking statements(1). The Company's
expectations for the future and related forward-looking
statements are based on a number of assumptions and forecasts as
to world economic growth and other economic indicators (including
rates of inflation, industrial production, housing starts and
light vehicle sales), trends in the Company's key markets, global
aluminum supply and demand conditions, and aluminum ingot prices,
among other items. By their nature, forward-looking statements
involve risk and uncertainty, and various factors could cause the
Company's actual results to differ materially from those
projected in a forward-looking statement or affect the extent to
which a particular projection is realized.
Consensus expectations for 1997 indicate global economic growth
of 3%. The Company is forecasting a 5.5 - 6.5% increase in
global aluminum consumption for the year, with especially strong
transportation and packaging markets. The Company is forecasting
the worldwide supply of aluminum to grow 3-3.5% in 1997. Barring
a recession in any major world economy, the Company expects these
improved conditions in aluminum industry supply/demand
fundamentals to continue for the next several years. The
Company's outlook for growth in aluminum consumption for the
remainder of this decade is an average of 2.5 - 4.0% per year.
The Company expects greater use of aluminum around the world in
automobiles and other light vehicles. The Company also expects
U.S. aluminum beverage can shipments to grow at about 2% per year
(2-3% in 1997) and global shipments to grow 5% annually, with
rapid growth of the aluminum beverage can market in Latin
America, Asia, the Middle East and other developing economies.
_______________________________
(1) Forward-looking statements can be identified generally as those
containing words such as "should", "hope", "forecast",
"project", "estimate", "expect", "anticipate" or "plan" and words
of similar effect.
<PAGE>
RISK FACTORS -- continued
Economic and/or market conditions other than as forecast by the
Company in the preceding paragraph, particularly in the U.S.,
Japan and Germany (which are large consumers of aluminum) and in
Latin America, could cause the Company's actual results to differ
materially from those projected in a forward-looking statement or
affect the extent to which a particular projection is realized.
The following factors also could affect the Company's results:
- - Primary aluminum is an internationally traded commodity.
The price of primary aluminum is subject to worldwide market
forces of supply and demand and other influences. Prices can be
volatile. The Company's use of contractual arrangements
including fixed-price sales contracts, fixed-price supply
contracts, and forward, futures and option contracts, reduces its
exposure to this volatility but does not eliminate it.
- - The markets for most aluminum products are highly
competitive. Certain of the Company's competitors are larger
than the Company in terms of total assets and operations and have
greater financial resources. Certain foreign governments are
involved in the operation and/or ownership of certain competitors
and may be motivated by political, as well as economic
considerations. In addition, aluminum competes with other
materials, such as steel, vinyl, plastics and glass, among
others, for various applications in the Company's key markets.
Unanticipated actions or developments by or affecting the
Company's competitors and/or the willingness of customers to
accept substitutions for the products sold by the Company could
affect results.
- - The Company spends substantial capital and operating amounts
relating to ongoing compliance with environmental laws. In
addition, the Company is involved in remedial investigations and
actions in connection with past disposal of wastes. Estimating
future environmental compliance and remediation costs is
imprecise due to the continuing evolution of environmental laws
and regulatory requirements and uncertainties about their
application to the Company's operations, the availability and
application of technology, the identification of currently
unknown remediation sites, and the allocation of costs among
potentially responsible parties.
- - Unanticipated material legal proceedings or investigations,
or the disposition of those currently pending against the Company
other than as anticipated by management and counsel, could affect
the Company's results.
- - Changes in the costs of power, resins, caustic soda, green
coke and other raw materials can affect results. The Company's
contract with the Bonneville Power Administration for the
period October 1996 - September 2001 provides fixed rates for
electrical power provided to the Company's Washington and
Oregon primary aluminum production plants. These rates have
been approved by federal regulatory authorities but have been
appealed in court by a third party. If the appeal is successful,
it is possible that higher electricity costs might result.
- - The Company's key transportation market is cyclical, and
sales to that market in particular can be influenced by economic
conditions.
- - A strike at a customer facility or a significant downturn in
the business of a key customer supplied by the Company could
affect the Company's results.
<PAGE>
RISK FACTORS -- continued
- - The Company is conducting a portfolio review of all its
operations and businesses. The Company is considering
alternatives that include, among other things, asset sales, spin-
offs and formation of strategic alliances. In connection with
the portfolio review, the Company has announced the signing of a
letter of intent for the sale of its Sheffield, Alabama rolling
mill and related assets, its Canadian extrusion plants in
Richmond Hill, Ontario and Ste. Therese, Quebec, its U.S.
recycling operations and its sheet and plate plant in Illinois.
These pending transactions are subject to certain conditions,
including due diligence reviews by the purchasers, negotiation of
definitive agreements and obtaining regulatory approvals and
third party consents. As a result, the transactions may or may
not be completed as contemplated. In addition, the Company is
evaluating a number of alternatives for its European rolling
operations and its extrusion operations in Spain. Whether and
when these transactions will be completed is not certain. The
Company is considering three options with respect to its can and
packaging businesses: (1) spin off the two businesses together;
(2) spin off one business or the other; or (3) sell a portion of
the two businesses. The timing, nature and magnitude of the
option that will be chosen are not certain and could affect the
Company's results and ongoing operating performance.
In addition to the factors referred to above, the Company is
exposed to general financial, political, economic and business
risks in connection with its worldwide operations. The Company
continues to evaluate and manage its operations in a manner to
mitigate the effects from exposure to such risks. In general,
the Company's expectations for the future are based on the
assumption that conditions relating to costs, currency values,
competition and the legal, regulatory, financial, political and
business environments in the economies and markets in which the
Company operates will not change significantly overall.
<PAGE>
PART II - OTHER INFORMATION
Item 2. CHANGES IN SECURITIES
(a) Recent Sales of Unregistered Securities
Under the Registrant's Stock Plan for Outside Directors
(the "Plan"), 66.278 phantom shares, in the aggregate, were
granted to the Registrant's nine outside Directors on July
1, 1997, based on an average price of $71.3125 per share.
These phantom shares represent dividend equivalents paid on
phantom shares previously granted under the Plan. 506.25
phantom shares, in the aggregate, were granted to the nine
outside Directors on September 30, 1997, based on an average
price of $70.50 per share. These phantom shares represent
the second quarterly installment of each outside Director's
annual grant under the Plan.
To the extent that these grants constitute sales of
equity securities, the Registrant issued these phantom
shares in reliance on the exemption provided by Section 4(2)
of the Securities Act of 1933, as amended, taking into
account the nature of the Plan, the number of outside
Directors participating in the Plan, the sophistication of
the outside Directors and their access to the kind of
information that a registration statement would provide.
A description of the Plan is contained in the
Registrant's Form 10-Q for the first quarter of 1997 in Part
II, Item 2, subparagraph (b), under the caption "Recent
Sales of Unregistered Securities".
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See Index to Exhibits.
(b) Reports on Form 8-K
The Registrant filed no reports on Form 8-K during the
third quarter of 1997.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
REYNOLDS METALS COMPANY
By Allen M. Earehart
Allen M. Earehart
Vice President, Controller
(Chief Accounting Officer)
DATE: November 12, 1997
<PAGE>
INDEX TO EXHIBITS
EXHIBIT 2 - None
EXHIBIT 3.1 - Restated Certificate of Incorporation, as amended
EXHIBIT 3.2 - By-Laws, as amended
EXHIBIT 4.1 - Restated Certificate of
Incorporation. See EXHIBIT 3.1.
EXHIBIT 4.2 - By-Laws. See EXHIBIT 3.2.
* EXHIBIT 4.3 - Indenture dated as of April 1, 1989 (the
"Indenture") between Reynolds Metals
Company and The Bank of New York, as
Trustee, relating to Debt Securities.
(File No. 1-1430, Form 10-Q Report for
the Quarter Ended March 31, 1989,
EXHIBIT 4(c))
* EXHIBIT 4.4 - Amendment No. 1 dated as of November 1, 1991 to
the Indenture. (File No. 1-1430, 1991
Form 10-K Report, EXHIBIT 4.4)
* EXHIBIT 4.5 - 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)
* EXHIBIT 4.6 - 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)
* EXHIBIT 4.7 - Form of 9-3/8% Debenture due June 15, 1999. (File
No. 1-1430, Form 8-K Report dated June
6, 1989, EXHIBIT 4)
* EXHIBIT 4.8 - Form of Fixed Rate Medium-Term Note.
(Registration Statement No. 33-30882 on
Form S-3, dated August 31, 1989, EXHIBIT
4.3)
* EXHIBIT 4.9 - Form of Floating Rate Medium-Term Note.
(Registration Statement No. 33-30882 on
Form S-3, dated August 31, 1989, EXHIBIT
4.4)
* EXHIBIT 4.10 - Form of Book-Entry Fixed Rate Medium-Term Note.
(File No. 1-1430, 1991 Form 10-K Report,
EXHIBIT 4.15)
* EXHIBIT 4.11 - Form of Book-Entry Floating Rate Medium-Term
Note. (File No. 1-1430, 1991 Form 10-K
Report, EXHIBIT 4.16)
* EXHIBIT 4.12 - Form of 9% Debenture due August 15, 2003. (File
No. 1-1430, Form 8-K Report dated August
16, 1991, Exhibit 4(a))
_______________________
*Incorporated by reference.
<PAGE>
* EXHIBIT 4.13 - Articles of Continuance of Societe d'Aluminium
Reynolds du Canada, Ltee/Reynolds
Aluminum Company of Canada, Ltd.
(formerly known as Canadian Reynolds
Metals Company, Limited -- Societe
Canadienne de Metaux Reynolds, Limitee)
("REYCAN"), as amended. (File No. 1-
1430, 1995 Form 10-K Report, EXHIBIT
4.13)
* EXHIBIT 4.14 - By-Laws of REYCAN, as amended. (File No. 1-
1430, Form 10-Q Report for the Quarter
Ended March 31, 1997, EXHIBIT 4.14)
EXHIBIT 4.15 - Articles of Incorporation of Societe Canadienne
de Metaux Reynolds, Ltee/Canadian
Reynolds Metals Company, Ltd. ("CRM"),
as amended
EXHIBIT 4.16 - By-Laws of CRM, as amended
* EXHIBIT 4.17 - Indenture dated as of April 1, 1993 among REYCAN,
Reynolds Metals Company and The Bank of
New York, as Trustee. (File No. 1-1430,
Form 8-K Report dated July 14, 1993,
EXHIBIT 4(a))
* EXHIBIT 4.18 - First Supplemental Indenture, dated as of
December 18, 1995 among REYCAN, Reynolds
Metals Company, CRM and The Bank of New
York, as Trustee. (File No. 1-1430,
1995 Form 10-K Report, EXHIBIT 4.18)
* EXHIBIT 4.19 - Form of 6-5/8% Guaranteed Amortizing Note due July
15, 2002. (File No. 1-1430, Form 8-K
Report dated July 14, 1993, EXHIBIT
4(d))
* EXHIBIT 10.1 - Reynolds Metals Company 1987 Nonqualified Stock
Option Plan. (Registration Statement
No. 33-13822 on Form S-8, dated April
28, 1987, EXHIBIT 28.1)
* EXHIBIT 10.2 - Reynolds Metals Company 1992 Nonqualified Stock
Option Plan. (Registration Statement
No. 33-44400 on Form S-8, dated December
9, 1991, EXHIBIT 28.1)
* EXHIBIT 10.3 - 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)
* EXHIBIT 10.4 - Agreement dated December 9, 1987 between Reynolds
Metals Company and Jeremiah J. Sheehan.
(File No. 1-1430, 1987 Form 10-K Report,
EXHIBIT 10.9)
* EXHIBIT 10.5 - Supplemental Death Benefit Plan for
Officers. (File No. 1-1430, 1986 Form
10-K Report, EXHIBIT 10.8)
* EXHIBIT 10.6 - Financial Counseling Assistance Plan for Officers.
(File No. 1-1430, 1987 Form 10-K Report,
EXHIBIT 10.11)
_______________________
*Incorporated by reference.
<PAGE>
* EXHIBIT 10.7 - Management Incentive Deferral Plan.
(File No. 1-1430, 1987 Form 10-K Report,
EXHIBIT 10.12)
* EXHIBIT 10.8 - Deferred Compensation Plan for Outside Directors
as Amended and Restated Effective
December 1, 1993. (File No. 1-1430,
1993 Form 10-K Report, EXHIBIT 10.12)
* EXHIBIT 10.9 - Form of Indemnification Agreement for Directors
and Officers. (File No. 1-1430, Form 8-
K Report dated April 29, 1987, EXHIBIT
28.3)
* EXHIBIT 10.10 - Form of Executive Severance Agreement between
Reynolds Metals Company and key
executive personnel, including each of
the current executive officers (other
than Donna C. Dabney) listed in Item 4A
of the Reynolds Metals Company 1996 Form
10-K Report. (File No. 1-1430, 1987
Form 10-K Report, EXHIBIT 10.18)
* EXHIBIT 10.11 - Amendment to Reynolds Metals Company 1987
Nonqualified Stock Option Plan effective
May 20, 1988. (File No. 1-1430, Form 10-
Q Report for the Quarter Ended June 30,
1988, EXHIBIT 19(a))
* EXHIBIT 10.12 - Amendment to Reynolds Metals Company 1987
Nonqualified Stock Option Plan effective
October 21, 1988. (File No. 1-1430,
Form 10-Q Report for the Quarter Ended
September 30, 1988, EXHIBIT 19(a))
* EXHIBIT 10.13 - Amendment to Reynolds Metals Company 1987
Nonqualified Stock Option Plan effective
January 1, 1987. (File No. 1-1430, 1988
Form 10-K Report, EXHIBIT 10.22)
* EXHIBIT 10.14 - Form of Stock Option and Stock Appreciation
Right Agreement, as approved February
16, 1990 by the Compensation Committee
of the Company's Board of Directors.
(File No. 1-1430, 1989 Form 10-K Report,
EXHIBIT 10.24)
* EXHIBIT 10.15 - Amendment to Reynolds Metals Company 1987
Nonqualified Stock Option Plan effective
January 18, 1991. (File No. 1-1430,
1990 Form 10-K Report, EXHIBIT 10.26)
* EXHIBIT 10.16 - Form of Stock Option Agreement, as approved
April 22, 1992 by the Compensation
Committee of the Company's Board of
Directors. (File No. 1-1430, Form 10-Q
Report for the Quarter Ended March 31,
1992, EXHIBIT 28(a))
* EXHIBIT 10.17 - Reynolds Metals Company Restricted Stock Plan for
Outside Directors. (Registration
Statement No. 33-53851 on Form S-8,
dated May 27, 1994, EXHIBIT 4.6)
* EXHIBIT 10.18 - Reynolds Metals Company New Management Incentive
Deferral Plan. (File No. 1-1430, Form
10-Q Report for the Quarter Ended June
30, 1994, EXHIBIT 10.30)
____________________________
* Incorporated by reference.
<PAGE>
* EXHIBIT 10.19 - Reynolds Metals Company Salary Deferral Plan for
Executives. (File No. 1-1430, Form 10-Q
Report for the Quarter Ended June 30,
1994, EXHIBIT 10.31)
* EXHIBIT 10.20 - Reynolds Metals Company Supplemental Long Term
Disability Plan for Executives. (File
No. 1-1430, Form 10-Q Report for the
Quarter Ended June 30, 1994, EXHIBIT
10.32)
* EXHIBIT 10.21 - Amendment to Reynolds Metals Company 1987
Nonqualified Stock Option Plan effective
August 19, 1994. (File No. 1-1430, Form
10-Q Report for the Quarter Ended
September 30, 1994, EXHIBIT 10.34)
* EXHIBIT 10.22 - Amendment to Reynolds Metals Company 1992
Nonqualified Stock Option Plan effective
August 19, 1994. (File No. 1-1430, Form
10-Q Report for the Quarter Ended
September 30, 1994, EXHIBIT 10.35)
* EXHIBIT 10.23 - Amendment to Reynolds Metals Company New
Management Incentive Deferral Plan
effective January 1, 1995. (File No. 1-
1430, 1994 Form 10-K Report, EXHIBIT
10.36)
* EXHIBIT 10.24 - Form of Split Dollar Life Insurance Agreement
(Trustee Owner, Trustee Pays Premiums).
(File No. 1-1430, Form 10-Q Report for
the Quarter Ended June 30, 1995, EXHIBIT
10.34)
* EXHIBIT 10.25 - Form of Split Dollar Life Insurance Agreement
(Trustee Owner, Employee Pays Premium).
(File No. 1-1430, Form 10-Q Report for
the Quarter Ended June 30, 1995, EXHIBIT
10.35)
* EXHIBIT 10.26 - Form of Split Dollar Life Insurance Agreement
(Employee Owner, Employee Pays Premium).
(File No. 1-1430, Form 10-Q Report for
the Quarter Ended June 30, 1995, EXHIBIT
10.36)
* EXHIBIT 10.27 - Form of Split Dollar Life Insurance Agreement
(Third Party Owner, Third Party Pays
Premiums). (File No. 1-1430, Form 10-Q
Report for the Quarter Ended June 30,
1995, EXHIBIT 10.37)
* EXHIBIT 10.28 - Form of Split Dollar Life Insurance Agreement
(Third Party Owner, Employee Pays
Premiums). (File No. 1-1430, Form 10-Q
Report for the Quarter Ended June 30,
1995, EXHIBIT 10.38)
* EXHIBIT 10.29 - Reynolds Metals Company 1996 Nonqualified Stock
Option Plan. (Registration Statement
No. 333-03947 on Form S-8, dated May 17,
1996, EXHIBIT 4.6)
* EXHIBIT 10.30 - Amendment to Reynolds Metals Company 1992
Nonqualified Stock Option Plan effective
January 1, 1993. (Registration
Statement No. 333-03947 on Form S-8,
dated May 17, 1996, EXHIBIT 99)
____________________________
* Incorporated by reference.
<PAGE>
* EXHIBIT 10.31 - Form of Stock Option Agreement, as approved May
17, 1996 by the Compensation Committee
of the Company's Board of Directors.
(File No. 1-1430, Form 10-Q Report for
the Quarter Ended June 30, 1996, EXHIBIT
10.41)
* EXHIBIT 10.32 - Form of Three Party Stock Option Agreement, as
approved May 17, 1996 by the
Compensation Committee of the Company's
Board of Directors. (File No. 1-1430,
Form 10-Q Report for the Quarter Ended
June 30, 1996, EXHIBIT 10.42)
* EXHIBIT 10.33 - Stock Option Agreement dated August 30, 1996
between Reynolds Metals Company and
Jeremiah J. Sheehan. (File No. 1-1430,
Form 10-Q Report for the Quarter Ended
September 30, 1996, EXHIBIT 10.43)
* EXHIBIT 10.34 - Amendment to Deferred Compensation Plan for
Outside Directors effective August 15,
1996. (File No. 1-1430, Form 10-Q
Report for the Quarter Ended September
30, 1996, EXHIBIT 10.44)
* EXHIBIT 10.35 - Amendment to Reynolds Metals Company New
Management Incentive Deferral Plan
effective January 1, 1996. (File No. 1-
1430, 1996 Form 10-K Report, EXHIBIT
10.38)
* EXHIBIT 10.36 - Amendment to Reynolds Metals Company Performance
Incentive Plan effective January 1,
1996. (File No. 1-1430, 1996 Form 10-K
Report, EXHIBIT 10.39)
* EXHIBIT 10.37 - Reynolds Metals Company Supplemental Incentive
Plan. (File No. 1-1430, 1996 Form 10-K
Report, EXHIBIT 10.40)
* EXHIBIT 10.38 - Reynolds Metals Company Stock Plan for Outside
Directors. (File No. 1-1430, 1996 Form
10-K Report, EXHIBIT 10.41)
* EXHIBIT 10.39 - Special Executive Severance Package for Certain
Employees who Terminate Employment
between January 1, 1997 and June 30,
1998, as approved by the Compensation
Committee of the Company's Board of
Directors on January 17, 1997. (File
No. 1-1430, 1996 Form 10-K Report,
EXHIBIT 10.42)
* EXHIBIT 10.40 - Special Award Program for Certain Executives or
Key Employees, as approved by the
Compensation Committee of the Company's
Board of Directors on January 17, 1997.
(File No. 1-1430, 1996 Form 10-K Report,
EXHIBIT 10.43)
EXHIBIT 11 - Omitted. See Part I, Item 1 for computation of
earnings per share
EXHIBIT 15 - None
EXHIBIT 18 - None
EXHIBIT 19 - None
____________________________
* Incorporated by reference.
<PAGE>
EXHIBIT 22 - None
EXHIBIT 23 - None
EXHIBIT 24 - None
EXHIBIT 27 - Financial Data Schedule
Pursuant to Item 601 of Regulation S-K, certain instruments
with respect to long-term debt of Reynolds Metals Company (the
"Registrant") and its consolidated subsidiaries are omitted
because such debt does not exceed 10 percent of the total assets
of the Registrant and its subsidiaries on a consolidated basis.
The Registrant agrees to furnish a copy of any such instrument to
the Commission upon request.
EXHIBIT 3.1
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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:
<PAGE>
(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
<PAGE>
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
<PAGE>
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;
<PAGE>
(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;
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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 redemp-
<PAGE>
tion 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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 John H. Galea
John H. Galea
Senior Vice President and
General Counsel
ATTEST:
Donald T. Cowles
Donald T. Cowles
Secretary
<PAGE>
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.
<PAGE>
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
<PAGE>
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF OWNERSHIP & MERGER OF "REYNOLDS METALS
COMPANY" FILED IN THIS OFFICE ON THE TWENTY-THIRD DAY OF APRIL,
A.D. 1991, AT 9 O'CLOCK A.M.
* * * * * * * *
William T. Quillen
-----------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: *4114707
DATE: 10/25/1993
932985004
<PAGE>
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.
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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:
<PAGE>
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,
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF DESIGNATION OF "REYNOLDS METALS
COMPANY" FILED IN THIS OFFICE ON THE TWENTIETH DAY OF JANUARY,
A.D. 1994, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
William T. Quillen
-----------------------------
William T. Quillen, Secretary of State
AUTHENTICATION: 7005454
DATE: 01-21-94
0240111 8100
944002852
<PAGE>
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"):
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE> 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF OWNERSHIP, WHICH MERGES:
"BEV-PAK, INC.", A DELAWARE CORPORATION,
"R/M CAN COMPANY", A DELAWARE CORPORATION,
WITH AND INTO "REYNOLDS METALS COMPANY" UNDER THE NAME OF
"REYNOLDS METALS COMPANY", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED
IN THIS OFFICE THE TWELFTH DAY OF DECEMBER, A.D. 1994, AT 9
O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
Edward J. Freel
-----------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7334005
DATE: 12-12-94
0240111 8100M
944241228
<PAGE>
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,
<PAGE>
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 D. Michael Jones
Vice President, General Counsel
and Secretary
[SEAL]
ATTEST:
By: Brenda A. Hart
Assistant Secretary
<PAGE>
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF OWNERSHIP, WHICH MERGES:
"RMC HOLDING, INC.", A DELAWARE CORPORATION,
WITH AND INTO "REYNOLDS METALS COMPANY" UNDER THE NAME OF
"REYNOLDS METALS COMPANY", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED
IN THIS OFFICE THE THIRTEENTH DAY OF DECEMBER, A.D. 1995, AT 9
O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
Edward J. Freel
-----------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7752105
DATE: 12-15-95
0240111 8100M
950294013
<PAGE>
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
<PAGE>
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
By D. Michael Jones
______________________________
Vice President, General
Counsel and Secretary
[SEAL]
ATTEST:
Brenda A. Hart
By: -----------------------------
Assistant Secretary
<PAGE>
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF OWNERSHIP, WHICH MERGES:
"RMC ACCEPTANCE, INC.", A DELAWARE CORPORATION,
WITH AND INTO "REYNOLDS METALS COMPANY" UNDER THE NAME OF
"REYNOLDS METALS COMPANY", A CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED
IN THIS OFFICE THE TWENTY-THIRD DAY OF DECEMBER, A.D. 1996, AT 9
O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
Edward J. Freel
-----------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION:
DATE: 12-24-96
024011100 8100
96036137
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
RMC ACCEPTANCE, 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
ACCEPTANCE, INC., a Delaware corporation.
THIRD: That the Corporation, by the following
resolutions of the Executive Committee of its Board of Directors,
duly adopted by unanimous written consent as of the 20th day of
December, 1996, determined to merge into itself RMC ACCEPTANCE,
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 ACCEPTANCE, INC., merge into itself RMC
ACCEPTANCE, INC. and assume all of its liabilities and
obligations effective as of 12:01 a.m. E.S.T. on
January 2, 1997; and
FURTHER RESOLVED, that the Chief Executive
Officer, any Vice Chairman and Executive Officer, the
Chief Financial Officer, any Senior Vice President, any
Vice President, the Secretary and any Assistant
Secretary are each 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
<PAGE>
(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.
This Certificate of Ownership and Merger shall be
effective as of 12:01 a.m. E.S.T. on January 2, 1997.
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 20th
day of December, 1996.
REYNOLDS METALS COMPANY
By D. Michael Jones
Senior Vice President and
General Counsel
[SEAL]
ATTEST:
By: Donna C. Dabney
Secretary
<PAGE>
State of Delaware PAGE 1
Office of the Secretary of State
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF DESIGNATION OF "REYNOLDS METALS
COMPANY", FILED IN THIS OFFICE ON THE TWENTY-FIRST DAY OF
JANUARY, A.D. 1997, AT 9 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO
THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
Edward J. Freel
-----------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8294419
DATE: 01-22-97
0240111 8100
971020822
<PAGE>
CERTIFICATE OF ELIMINATION 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:
1. The Corporation has heretofore authorized and issued
11,000,000 shares of 7% PRIDES, Convertible Preferred Stock,
Stated Value $47.25 Per Share (the "PRIDES"), pursuant to
its Certificate of Designations, Preferences, Rights and
Limitations under Section 151 of the General Corporation Law
of the State of Delaware (the "PRIDES Certificate of
Designations") filed in the Office of Secretary of State of
the State of Delaware on January 20, 1994.
2. Pursuant to Section 3 of the PRIDES Certificate of
Designations, on December 2, 1996 the Corporation called all
of the outstanding shares of PRIDES for redemption on
December 31, 1996.
3. The Board of Directors of the Corporation duly adopted the
following resolutions at a meeting held on January 17, 1997,
acknowledging that as a result of the redemption of all of
the outstanding shares of the PRIDES on December 31, 1996,
none of the authorized shares of the PRIDES are outstanding,
and none will be issued subject to the PRIDES Certificate of
Designations:
RESOLVED, that as a result of the
redemption on December 31, 1996 of all of the
outstanding shares of 7% PRIDES(SM), Convertible
Preferred Stock, Stated Value $47.25 Per Share
(the "PRIDES"), of the corporation, none of the
authorized shares of the PRIDES are outstanding
and none will be issued subject to the Certificate
of Designations, Preferences, Rights and
Limitations relating to the PRIDES (the "PRIDES
Certificate of Designations") previously filed in
the Office of Secretary of State of the State of
Delaware; and
<PAGE>
FURTHER RESOLVED, that the Restated
Certificate of Incorporation of the corporation be
amended to eliminate all matters set forth in the
PRIDES Certificate of Designations; and
FURTHER RESOLVED, that the Chief Executive
Officer, any Vice Chairman and Executive Officer,
the Chief Financial Officer, the Senior Vice
President and General Counsel and the Secretary of
the corporation are each hereby authorized on
behalf of the corporation to take any and all such
action, including, without limitation, the filing
and recording of one or more certificates in the
appropriate offices in the State of Delaware, and
the 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 to effect
the transactions contemplated by, the preceding
resolutions, 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.
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 17th day
of January, 1997.
REYNOLDS METALS COMPANY
By D. Michael Jones
--------------------------
D. Michael Jones
Senior Vice President
and General Counsel
[SEAL]
ATTEST:
By Donna C. Dabney
------------------
Donna C. Dabney
Secretary
F:\BAH\PRIDES\ELIMIN.CER
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
ALUMINA TRANSPORT 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 Corporation owns all of the
outstanding shares of each class of the capital stock of ALUMINA
TRANSPORT CORPORATION, a Delaware corporation.
THIRD: That the Corporation, by the following
resolutions of the Executive Committee of its Board of Directors,
duly adopted by unanimous written consent as of the 20th day of
June, 1997, determined to merge into itself ALUMINA TRANSPORT
CORPORATION 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 ALUMINA TRANSPORT CORPORATION, merge into
itself ALUMINA TRANSPORT CORPORATION and assume all of
its liabilities and obligations effective as of 12:01
a.m., E.D.T., on July 1, 1997; and
FURTHER RESOLVED, that the Chief Executive
Officer, any Vice Chairman and Executive Officer, the
Chief Financial Officer, any Senior Vice President, any
Vice President, the Secretary and any Assistant
Secretary are each 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
<PAGE>
(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.
This Certificate of Ownership and Merger shall be
effective as of 12:01 a.m., E.D.T., on July 1, 1997.
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 23rd
day of June, 1997.
REYNOLDS METALS COMPANY
By D. Michael Jones
Senior Vice President and
General Counsel
[SEAL]
ATTEST:
By: Donna C. Dabney
Secretary
F:\BFH\ATC\CERTMERG.DOC
EXHIBIT 3.2
By-Laws
of
REYNOLDS METALS COMPANY
(Incorporated under the Laws of Delaware)
<PAGE>
By-Laws
of
REYNOLDS METALS COMPANY
Table of Contents
Page
ARTICLE I - Stock
Section 1. Certificates for Stock . . . . . . . . . 1
Section 2. Transfers of Stock . . . . . . . . . . . 1
Section 3. Holders of Record . . . . . . . . . . . 1
Section 4. Lost or Destroyed Certificates . . . . . 2
ARTICLE II - Stockholders' Meetings
Section 1. Place of Meetings . . . . . . . . . . . 2
Section 2. Annual Meetings . . . . . . . . . . . . 2
Section 3. Special Meetings . . . . . . . . . . . . 2
Section 4. Matters to be Brought Before
Stockholders Meetings . . . . . . . . . 2-4
Section 5. Notice of Meetings . . . . . . . . . . . 4
Section 6. Quorum . . . . . . . . . . . . . . . . . 4
Section 7. Adjourned Meetings . . . . . . . . . . . 4-5
Section 8. Inspectors of Election . . . . . . . . . 5
Section 9. List of Stockholders . . . . . . . . . . 5
Section 10. Voting . . . . . . . . . . . . . . . . . 5-6
Section 11. Consents in Writing . . . . . . . . . . 6
ARTICLE III - Board of Directors
Section 1. Number; Term of Office; Powers . . . . . 6-7
Section 2. Resignations . . . . . . . . . . . . . . 7
Section 3. Vacancies . . . . . . . . . . . . . . . 7
Section 4. Annual Meeting . . . . . . . . . . . . . 7
Section 5. Regular Meetings . . . . . . . . . . . . 7
Section 6. Special Meetings . . . . . . . . . . . . 7-8
Section 7. Notice of Meetings . . . . . . . . . . . 8
Section 8. Quorum; Adjourned Meetings;
Required Vote . . . . . . . . . . . . . 8
Section 9. Committees . . . . . . . . . . . . . . . 8-9
Section 10. Compensation . . . . . . . . . . . . . . 9
Section 11. Consents in Writing . . . . . . . . . . 9
Section 12. Participation by Conference Telephone . 9
<PAGE>
Table of Contents, Continued
ARTICLE IV - Officers
Section 1. Officers . . . . . . . . . . . . . . . . 9-10
Section 2. Chairman of the Board . . . . . . . . . 10
Section 3. Vice Chairmen of the Board . . . . . . . 10
Section 4. President . . . . . . . . . . . . . . . 10
Section 5. Vice Presidents . . . . . . . . . . . . 10
Section 6. General Counsel . . . . . . . . . . . . 10-11
Section 7. Secretary . . . . . . . . . . . . . . . 11
Section 8. Treasurer . . . . . . . . . . . . . . . 11
Section 9. Controller . . . . . . . . . . . . . . . 11
Section 10. Other Officers and Assistant Officers . 11
Section 11. Term of Office; Vacancies . . . . . . . 11
Section 12. Removal . . . . . . . . . . . . . . . 12
ARTICLE V - Dividends and Finance
Section 1. Dividends . . . . . . . . . . . . . . . 12
Section 2. Deposits; Withdrawals; Notes and Other
Instruments . . . . . . . . . . . . . . 12
Section 3. Fiscal Year . . . . . . . . . . . . . . 12
ARTICLE VI - Books and Records; Record Date
Section 1. Books and Records . . . . . . . . . . . 12
Section 2. Record Date . . . . . . . . . . . . . . 12-13
ARTICLE VII - Notices
Section 1. Notices . . . . . . . . . . . . . . . . 14
Section 2. Waivers of Notice . . . . . . . . . . . 14
ARTICLE VIII - Contracts
Section 1. Interested Directors or Officers . . . . 14-15
ARTICLE IX - Seal
Section 1. Seal . . . . . . . . . . . . . . . . . . 15
ARTICLE X - Indemnification
Section 1. Indemnification in Third Party
Actions . . . . . . . . . . . . . . . . 15-16
Section 2. Indemnification in an Action by or in
the Right of the Corporation . . . . . . 16
Section 3. Indemnification as of Right . . . . . . 17
Section 4. Determination of Indemnification . . . . 17
Section 5. Advance for Expenses . . . . . . . . . . 17
Section 6. General Provisions . . . . . . . . . . . 17-18
ARTICLE XI - Amendments
Section 1. Amendments . . . . . . . . . . . . . . . 18-19
<PAGE>
By-Laws
of
REYNOLDS METALS COMPANY
(Incorporated under the Laws of Delaware)
ARTICLE I - Stock
1. Certificates for Stock. Certificates of Stock shall be
issued in numerical order, be signed by the Chairman of the Board
of Directors, a Vice Chairman of the Board of Directors, the
President or a Vice President, and by the Secretary or an Assis
tant Secretary, or the Treasurer or an Assistant Treasurer, and
sealed with the corporate seal; provided, that where any Certifi
cate of Stock is signed by a duly appointed and authorized
Transfer Agent or Registrar the signatures of the Chairman of the
Board of Directors, Vice Chairman of the Board of Directors, the
President, Vice President, Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer may be facsimile, engraved or
printed, and the seal of the corporation on any such Certificate
of Stock may be facsimile, engraved or printed. In case any
officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation
with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
2. Transfers of Stock. Transfers of stock shall be made
only upon the books of the corporation, and only by the person
named in the certificate or by attorney, lawfully constituted in
writing, and only upon surrender of the certificate therefor.
The directors may by resolution make reasonable regulations for
the transfers of stock.
3. Holders of Record. Registered stockholders only shall
be entitled to be treated by the corporation as the holders in
fact of the stock standing in their respective names and the
corporation shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other
person, whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of Delaware.
<PAGE>
4. Lost or Destroyed Certificates. In case of loss or
destruction of any certificate of stock another may be issued in
its place upon satisfactory proof of such loss or destruction and
upon the giving of a satisfactory bond of indemnity to the
corporation, all as determined either expressly by the directors
or pursuant to general authority granted by them.
ARTICLE II - Stockholders' Meetings
1. Place of Meetings. Meetings of the stockholders shall
be held at such place, within or outside the State of Delaware,
as the Board of Directors may determine.
2. Annual Meeting. The annual meeting of the stockholders
of the corporation, for the election of directors to succeed
those whose terms expire, and for the transaction of such other
business as may come before the meeting, shall be held on the
Thursday preceding the third Friday of the month of May of each
year, if not a legal holiday, and if a legal holiday, then on the
first business day following, at 4:00 p.m., or on such other date
and at such other time as may be fixed by the Board of Directors.
The annual meeting of the stockholders may be postponed by the
Board of Directors upon public notice given before the date
previously scheduled for such meeting. If the annual meeting of
the stockholders be not held as herein prescribed, the election
of directors may be held at any meeting thereafter called
pursuant to these By-Laws.
3. Special Meetings. Special meetings of the stockholders
may be called by the Chairman of the Board of Directors, or a
Vice Chairman of the Board of Directors, or the President or by
the Board of Directors, and shall be called at any time by the
Board of Directors upon the request in writing of stockholders
entitled to cast a majority of the votes which all stockholders
are entitled to cast. Such request must state the purpose of the
meeting.
4. Matters to be Brought Before Stockholders Meetings.
Except as otherwise provided by law, at any annual or special
meeting of stockholders only such business shall be conducted as
shall have been properly brought before the meeting in accordance
with this Section.
<PAGE>
In order to be properly brought before the meeting,
such business must have either been (i) specified in the written
notice of the meeting (or any supplement thereto) given to
stockholders of record on the record date for such meeting by or
at the direction of the Board of Directors, (ii) brought before
the meeting at the direction of the Board of Directors or the
officer presiding over the meeting, or (iii) specified in a
written notice given by or on behalf of a stockholder of record
on the record date for such meeting entitled to vote thereat or a
duly authorized proxy for such stockholder, in accordance with
all of the following requirements.
A notice referred to in clause (iii) hereof must be
delivered personally to, or mailed to and received at, the
principal executive office of the corporation, addressed to the
attention of the Secretary, not more than ten (10) days after the
date of the initial notice referred to in clause (i) hereof, in
the case of business to be brought before a special meeting of
stockholders, and not less than thirty (30) days prior to the
first anniversary date of the initial notice referred to in
clause (i) hereof of the previous year's annual meeting, in the
case of business to be brought before an annual meeting of
stockholders, provided, however, that such notice shall not be
required to be given more than ninety (90) days prior to an
annual meeting of stockholders. Such notice referred to in
clause (iii) hereof shall set forth:
(a) a full description of each such item of business
proposed to be brought before the meeting;
(b) the name and address of the person proposing to bring
such business before the meeting;
(c) the class and number of shares held of record, held
beneficially and represented by proxy by such person as of the
record date for the meeting (if such date has then been made
publicly available) and as of the date of such notice;
(d) if any item of such business involves a nomination for
director, all information regarding each such nominee that would
be required to be set forth in a definitive proxy statement filed
with the Securities and Exchange Commission pursuant to Section
14 of the Securities Exchange Act of 1934, as amended, or any
successor thereto and the written consent of each such nominee to
serve if elected; and
<PAGE>
(e) all other information that would be required to be
filed with the Securities and Exchange Commission if, with
respect to the business proposed to be brought before the meet
ing, the person proposing such business was a participant in a
solicitation subject to Section 14 of the Securities Exchange Act
of 1934, as amended, or any successor thereto.
No business shall be brought before any meeting of
stockholders of the corporation otherwise than as provided in
this Section.
5. Notice of Meetings. Written notice of the place, date
and hour of the annual and of all special meetings of the stock
holders and, in the case of special meetings, of the purpose or
purposes for which such special meeting is called, shall be given
in the manner specified in Section l of Article VII of these By-
Laws not less than ten (10) nor more than sixty (60) days prior
to the meeting, to each stockholder of record of the corporation
entitled to vote thereat. Business transacted at all special
meetings shall be confined to the purposes stated in the notice.
6. Quorum. A quorum at any annual or special meeting of
the stockholders shall consist of the presence, in person or by
proxy, of stockholders entitled to cast a majority of the votes
which all stockholders are entitled to cast, except as otherwise
specifically provided by law or in the Certificate of Incorpora
tion.
7. Adjourned Meetings. Whether or not a quorum is present
at a properly called stockholders' meeting, the meeting may be
adjourned from time to time by the Chairman of the meeting or by
a majority in interest of those present in person or by proxy and
entitled to vote thereat. At any such adjourned meeting at which
a quorum shall be present, any business may be transacted which
might have been transacted at the meeting as originally notified.
If the adjournment is for more than thirty (30) days, or if after
the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting; otherwise,
no notice of such adjourned meeting need be given if the time and
place thereof are announced at the meeting at which the
adjournment is taken. The absence from any meeting of
stockholders holding the number of shares of stock of the corpora
tion required by law, the Certificate of Incorporation or these
By-Laws for action upon any given matter shall not prevent
<PAGE>
action at such meeting upon any other matter or matters which may
properly come before the meeting, if there shall be present
thereat in person or by proxy stockholders holding the number of
shares of stock of the corporation required in respect of such
other matter or matters.
8. Inspectors of Election. In advance of any meeting of
stockholders or any corporate action to be taken by the stock
holders in writing without a meeting, the Chief Executive Offi
cer, Chief Operating Officer, Chief Financial Officer or Secre
tary of the corporation shall appoint one or more inspectors of
election to serve at such meeting or to examine such written
consents and to make a written report with respect thereto. In
addition, any such officer may, but shall not be required to,
designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is
able to act at a meeting of stockholders, the presiding officer
at such meeting shall appoint one or more inspectors to act at
the meeting. Each inspector shall discharge his or her duties in
accordance with applicable law and shall, before entering upon
the discharge of his or her duties, take and sign an oath faith
fully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability.
9. List of Stockholders. A complete list of the stock
holders entitled to vote at each annual or special meeting of the
stockholders of the corporation, arranged in alphabetical order,
showing the address of record of each and the number of voting
shares held by each, shall be prepared by the Secretary, who
shall have charge of the stock ledger, and filed in the City (or,
if such meeting is to be held at a place not within any city,
then in the county) where the meeting is to be held, at a loca
tion specified in the Notice of Meeting, or if no such location
is specified in such notice, at the place where the meeting is to
be held, at least ten (10) days before every such meeting, and
shall, during the usual hours for business, be open to the
examination of any stockholder for any purpose germane to the
meeting, and during the whole time of said meeting be open to the
examination of any stockholder.
10. Voting. Subject to the provisions of Article VI,
Section 2 of these By-Laws, and except where a different vote per
share is prescribed by the Certificate of Incorporation for a
class of stock, each holder of stock of a class which is entitled
to vote in any election or on any other questions at any annual
or special meeting of the stockholders shall be entitled to one
<PAGE>
vote, in person or by written proxy, for each share of such class
held of record. Except where, and to the extent that, a differ
ent percentage of votes and/or a different exercise of voting
power is prescribed by law, the Certificate of Incorporation or
these By-Laws, all elections and other questions shall be decided
by the vote of stockholders, present in person or by proxy and
entitled to vote, representing a majority of the votes cast.
Abstentions shall be counted in the tabulation of the votes cast.
The votes for directors, and, upon demand of any stockholder, or
where required by law, the votes upon any question before the
meeting, shall be by ballot; otherwise, the election shall be
held as the presiding officer prescribes.
11. Consents in Writing. Any action which might have been
taken under these By-Laws by a vote of the stockholders at a
meeting thereof may be taken by them without a meeting, without
prior notice and without a vote, if a consent in writing setting
forth the action so taken shall be signed by the holders of
outstanding shares of stock of the corporation having not less
than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be
delivered to the corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or the
Secretary. Delivery made to the corporation's registered office
shall be by hand or by certified or registered mail, return
receipt requested. Prompt notice of the taking of such corporate
action shall be given to those stockholders who have not
consented thereto if less than unanimous written consent is
obtained. Every written consent shall bear the date of signature
of each stockholder who signs the consent. No written consent
shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the date the earliest
dated written consent (executed and delivered in accordance with
this Section) was received by the corporation, written consents
signed by a sufficient number of holders (determined in
accordance with this Section) to take such action are delivered
to the corporation in the manner specified in this Section.
ARTICLE III - Board of Directors
1. Number; Term of Office; Powers. The business and
affairs of the corporation shall be under the direction of a
Board of Directors, consisting of twelve (12) persons. Directors
<PAGE>
shall be elected for one year, and shall hold office until their
successors are elected and qualified. Directors need not be
stockholders. In addition to the power and authority expressly
conferred upon them by the By-Laws and the Certificate of
Incorporation, the Board of Directors may exercise all such
powers of the corporation and do all such lawful acts and things
as are not by law or by the Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the
stockholders.
2. Resignations. Any director may resign at any time by
giving written notice of resignation to the Board of Directors,
to the Chief Executive Officer or to the Secretary of the corpo
ration. Any such resignation shall take effect at the time
specified therein, or if the time be not specified therein, then
upon receipt thereof. The acceptance of such resignation shall
not be necessary to make it effective.
3. Vacancies. Except as otherwise specifically provided
by law, the Certificate of Incorporation or these By-Laws, all
vacancies in the Board of Directors, whether caused by resigna
tion, death, increase in the number of authorized directors or
otherwise, may be filled by a majority of the Board of Directors
then in office, even though less than a quorum, or by the stock
holders at a special meeting. A director thus elected to fill
any vacancy shall hold office until the next annual meeting of
stockholders and until a successor is elected and qualified.
4. Annual Meeting. The annual meeting of the Board of
Directors, for the election of officers and the transaction of
other business, shall be held on the same day and at the same
place as, and as soon as practicable following, the annual
meeting of stockholders, or at such other date, time or place as
the directors may by resolution designate.
5. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times, and at such place within
or outside the State of Delaware, as the Board of Directors may
from time to time by resolution designate.
6. Special Meetings. Special meetings of the directors
may be called at any time by the Chairman of the Board of Direc
tors, a Vice Chairman of the Board of Directors, the President or
an Executive Vice President, or by the Secretary upon written
request of one-third of the directors, such request stating the
<PAGE>
purpose for which the meeting is to be called. Special meetings
shall be held at the principal office of the corporation or at
such office within or outside the State of Delaware as the
directors may from time to time designate.
7. Notice of Meetings. Except as otherwise required by
law, notice of special meetings of the Board of Directors or of
any committee of the Board of Directors shall be given to each
director or to each committee member, as the case may be, by mail
at least two days before the day on which the meeting is to be
held or by personal delivery, word-of-mouth, telephone, tele
graph, radio, cable or other comparable means at least six hours
before the time at which the meeting is to be held. Such notice
shall state the time and place of such meeting, but need not
state the purposes thereof unless otherwise required by law. No
notice need be given of the annual meeting of directors or of
regular meetings of directors or of committees of the Board of
Directors, provided that, whenever the time or place of such
meetings shall be fixed or changed, notice of such action shall
be given promptly to each director or to each committee member,
as the case may be, who shall not have been present at the
meeting at which such action was taken.
8. Quorum; Adjourned Meetings; Required Vote. A majority
of the Board of Directors as constituted from time to time shall
be necessary and sufficient at all meetings to constitute a
quorum for the transaction of business. In the absence of a
quorum, a majority of those present may adjourn the meeting from
time to time and the meeting may be held as adjourned without
further notice provided a quorum be present at such adjourned
meeting. Unless otherwise specifically provided by the Certifi
cate of Incorporation or statute, the act of a majority of the
directors present at any properly convened meeting at which there
is a quorum, but in no case less than one-third of all of the
directors then in office, shall be the act of the Board of
Directors.
9. Committees. Standing or Temporary Committees may be
appointed from their own number by the Board of Directors from
time to time, and the directors may from time to time vest such
committees with such powers as the directors may see fit, subject
to such conditions as the directors may prescribe or as may be
prescribed by law. All committees shall consist of two or more
directors. The term of office of the members of each committee
shall be as fixed from time to time by the Board of Directors;
<PAGE>
provided, however, that any committee member who ceases to be a
director shall ipso facto cease to be a committee member. Any
member of any committee may be removed at any time with or
without cause by the Board of Directors, and any vacancy in any
committee may be filled by the Board of Directors. All commit
tees shall keep regular minutes of their transactions and shall
cause them to be recorded in books kept for that purpose in the
office of the corporation, and shall report the same to the Board
of Directors at their regular meetings. Subject to this Section
9 and except as otherwise determined by the Board of Directors,
each committee may make rules for the conduct of its business.
10. Compensation. Directors, as such, may receive, pursu
ant to resolution of the Board of Directors, fixed fees, other
compensation and expenses for their services as directors,
including, without limitation, services as chairmen or as members
of committees of the directors; provided, however, that nothing
herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving
compensation therefor.
11. Consents in Writing. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members
of the Board of Directors or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Directors or
committee.
12. Participation by Conference Telephone. Members of the
Board of Directors or of any committee may participate in a
meeting of such Board of Directors or committee, as the case may
be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by
such means shall constitute presence in person at the meeting.
ARTICLE IV - Officers
1. Officers. The corporation may have a Chairman of the
Board of Directors, one or more Vice Chairmen of the Board of
Directors, a President, one or more Vice Presidents, which may
include Executive and Senior Vice Presidents, a General Counsel,
<PAGE>
a Secretary, a Treasurer, a Controller and such other officers
and assistant officers as the Board of Directors shall deem
appropriate; provided, that the corporation shall have such
officers as are required by applicable law. Officers shall be
elected annually by the Board of Directors. One person may hold
more than one office.
The Board of Directors shall designate a Chief Execu
tive Officer, and may designate a Chief Operating Officer and a
Chief Financial Officer from among the officers of the corpora
tion.
The Chief Executive Officer shall have general supervi
sion and management of the business and affairs of the corpora
tion, subject to the control of the Board of Directors, and may
prescribe the duties to be performed by the officers of the
corporation in addition to the duties prescribed by these By-Laws
or by the Board of Directors. In the absence or disability of
the Chairman of the Board of Directors, the Chief Executive
Officer shall preside at all meetings of stockholders and direc
tors. In the absence or disability of the Chief Executive
Officer, such officer of the corporation as the Chief Executive
Officer shall have designated in writing to the Board of Direc-
tors or to the Secretary of the corporation shall, subject to
further action by the Board of Directors, have the powers and
perform the duties of the Chief Executive Officer.
2. Chairman of the Board. The Chairman of the Board of
Directors shall preside at all meetings of stockholders and
directors.
3. Vice Chairmen of the Board. A Vice Chairman shall
perform such duties as are properly required by the Board of
Directors or the Chief Executive Officer.
4. President. The President shall perform such duties as
are properly required by the Board of Directors or the Chief
Executive Officer.
5. Vice Presidents. Each of the Executive Vice presi
dents, Senior Vice Presidents and other Vice Presidents shall
perform such duties as are properly required by the Board of
Directors or the Chief Executive Officer.
6. General Counsel. The General Counsel shall advise the
corporation on legal matters affecting the corporation and its
activities, shall supervise and direct the handling of all such
<PAGE>
legal matters and shall perform all such other duties as are
incident to the office of General Counsel.
7. Secretary. The Secretary shall keep the minutes of the
meetings of the stockholders and of the Board of Directors, and,
when required, the minutes of the meetings of the committees, and
shall be responsible for the custody of all such minutes. The
Secretary shall be responsible for the custody of the stock
ledger and documents of the corporation. The Secretary shall
have custody of the corporate seal and may affix and attest such
seal to any instrument whose execution shall have been duly
authorized and shall perform all other duties incident to the
office of Secretary.
8. Treasurer. The Treasurer shall have the custody of all
moneys and securities of the corporation and shall keep or cause
to be kept accurate accounts of all money received or payments
made in books kept for that purpose. The Treasurer shall deposit
or cause to be deposited funds of the corporation in accordance
with Article V, Section 2 of these By-Laws and shall disburse the
funds of the corporation by checks or vouchers as authorized by
the Board of Directors. The Treasurer shall also perform all
other duties incident to the office of Treasurer.
9. Controller. The Controller shall be the chief account
ing officer of the corporation. The Controller shall keep or
cause to be kept all books of accounts and accounting records of
the corporation and shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties
and business transactions of the corporation. The Controller
shall prepare or cause to be prepared appropriate financial
statements for the corporation and shall perform such other
duties as may be incident to the office of Controller.
10. Other Officers and Assistant Officers. All other
officers and assistant officers shall exercise such powers and
perform such duties as shall be determined from time to time by
the Board of Directors or the Chief Executive Officer.
11. Term of Office; Vacancies. Each officer shall hold
office until the annual meeting of the Board of Directors follow
ing the end of the term of the Board by which such officer is
elected, except in the case of earlier death, resignation or
removal. Vacancies in any office arising from any cause may be
filled by the directors at any regular or special meeting.
<PAGE>
12. Removal. Any officer elected or appointed by the Board
of Directors may be removed at any time, with or without cause,
by the Board of Directors.
ARTICLE V - Dividends and Finance
1. Dividends. Dividends may be declared to the full
extent permitted by law at such times as the Board of Directors
shall direct.
2. Deposits; Withdrawals; Notes and Other Instruments.
The moneys of the corporation shall be deposited in the name of
the corporation in such banks or trust companies as shall be
designated by the Board of Directors, and shall be drawn out only
by persons designated from time to time by the Board of Directors
or by an officer of this corporation to whom the Board of
Directors has delegated such authority. All notes and other
instruments for the payment of money shall be signed or endorsed
by officers or other persons authorized from time to time by the
Board of Directors or by an officer of this corporation to whom
the Board of Directors has delegated such authority.
3. Fiscal Year. The fiscal year of the corporation shall
date from the first day of January in each year.
ARTICLE VI - Books and Records; Record Date
1. Books and Records. The books, accounts and records of
the corporation, except as may be otherwise required by the laws
of the State of Delaware, may be kept within or outside of the
said State at such places as the Board of Directors may from time
to time appoint.
2. Record Date.
(a) The Board of Directors is authorized to fix in advance
a date, not exceeding sixty (60) days preceding the date of any
meeting of stockholders, or the date for the payment of any
dividend, or other distribution or allotment of any rights, or
the date when any change, conversion or exchange of capital stock
shall go into effect, as a record date for the determination of
<PAGE>
the stockholders entitled to notice of, and to vote at, any such
meeting and any adjournment thereof, or entitled to receive
payment of any such dividend or other distribution or allotment
of rights, or to exercise any rights in respect of any such
change, conversion or exchange of capital stock. Such stockhold
ers and only such stockholders as shall be stockholders of record
on the record date so fixed shall be entitled to such notice of,
and to vote at, such meeting and any adjournment thereof, or to
receive payment of such dividend or other distribution or allot
ment of rights, or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the
corporation after any such record date fixed as aforesaid. Any
such record date fixed in connection with a meeting of stockhold
ers shall not be less than ten (10) days before the date of such
meeting.
(b) In order that the corporation may determine the stock
holders entitled to consent to corporate action in writing
without a meeting, the Board of Directors is authorized to fix in
advance a record date, which record date shall not be more than
ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. Any stockhold
er of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to
the Secretary, request the Board of Directors to fix a record
date. If no record date has been fixed by the Board of Directors
within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is required by applica
ble law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or the
Secretary. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required
by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which
the Board of Directors adopts the resolution taking such prior
action. Such stockholders and only such stockholders as shall be
stockholders of record on the record date so fixed shall be
entitled to give such consent, notwithstanding any transfer of
any stock on the books of the corporation after any such record
date fixed as aforesaid.
<PAGE>
ARTICLE VII - Notices
1. Notices. Whenever any provision of law or these By-
Laws requires notice to be given to any director, officer or
stockholder, such notice may be given in writing by mailing the
same to such director, officer or stockholder at his or her
address as the same appears in the books of the corporation,
unless such stockholder shall have filed with the Secretary a
written request that notices intended for him or her be mailed to
some other address, in which case it shall be mailed to the
address designated in such request. The time when the same shall
be mailed shall be deemed to be the time of the giving of such
notice. This section shall not be deemed to preclude the giving
of notice by other means if permitted by the applicable provision
of law or these By-Laws.
2. Waivers of Notice. A waiver of any notice in writing,
signed by a stockholder, director or officer, whether before or
after the time stated in said waiver for holding a meeting, shall
be deemed equivalent to a notice required to be given to any
stockholder, director or officer.
ARTICLE VIII - Contracts
1. Interested Directors or Officers. No contract or
transaction between the corporation and one or more of its
directors or officers, or between the corporation and any other
corporation, partnership, association or other organization in
which one or more of the directors or officers of the corporation
are directors or officers, or have a financial interest, shall be
void or voidable solely for this reason, or solely because the
director or officer of the corporation is present at or partici
pates in the meeting of the Board of Directors or committee
thereof which authorizes the contract or transaction, or solely
because his, her or their votes are counted for such purpose, if:
(i) The material facts as to the relationship or
interest of such person and as to the contract or transac
tion are disclosed or are known to the Board of Directors or
the committee thereof, and the Board of Directors or commit
tee in good faith authorizes the contract or transaction by
<PAGE>
a vote sufficient for such purpose without counting the vote of
the interested director or directors of the corporation;
provided, however, that common or interested directors may
be counted in determining the presence of a quorum at a
meeting of the Board of Directors or committee; or
(ii) The material facts as to the relationship or
interest of such person and as to the contract or transac
tion are disclosed or are known to the stockholders of the
corporation entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote
of the stockholders of the corporation; or
(iii) The contract or transaction is fair as to the
corporation as of the time it is authorized, approved or
ratified by the Board of Directors, a committee thereof or
the stockholders of the corporation.
ARTICLE IX - Seal
1. Seal. The corporate seal of the corporation shall
consist of two concentric circles, between which is the name of
the corporation, and in the center shall be inscribed the year of
its incorporation and the words, "Corporate Seal, Delaware."
ARTICLE X - Indemnification
1. Indemnification in Third Party Actions. The corpora
tion shall indemnify each 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, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corpora
tion as a director, officer, employee or agent of another corpo
ration, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against
all expense, liability and loss (including attorneys fees,
judgments, fines, ERISA excise taxes or penalties, and amounts
<PAGE>
paid or to be paid in settlement) actually and reasonably in
curred by such person in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful, except that no indemnification shall be
made in respect of any proceeding (or part thereof) initiated by
such person unless such proceeding (or part thereof) was autho
rized by the Board of Directors of the corporation. The termina
tion of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best interests
of the corporation, and with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
2. Indemnification in an Action by or in the Right of the
Corporation. The corporation shall indemnify each person who was
or is a party or is threatened to be made a party to any threat
ened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of
the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit
plans, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense
or settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of (a) any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem
proper, or (b) any proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized by
the Board of Directors of the corporation.
<PAGE>
3. Indemnification as of Right. To the extent that a
director, officer, employee or agent of the corporation has been
successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Sections l and 2 of this
Article X, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including
attorneys fees) actually and reasonably incurred by such person
in connection therewith.
4. Determination of Indemnification. Any indemnification
under Sections 1 and 2 of this Article X (unless ordered by a
court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circum
stances because the person has met the applicable standard of
conduct set forth in such Sections l and 2. Such determination
shall be made (a) by the Board of Directors (the Board) by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (b) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion or (c) by the stockholders.
5. Advance for Expenses. Expenses (including attorneys'
fees) incurred in defending any civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf
of the director, officer, employee or agent to repay such amount
if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation as authorized in
this Article X.
6. General Provisions.
(a) All expenses (including attorneys' fees) incurred in
defending any civil, criminal, administrative or investigative
action, suit or proceeding which are advanced by the corporation
under Section 5 of this Article X shall be repaid (i) in case the
person receiving such advance is ultimately found, under the
procedure set forth in this Article X, not to be entitled to
indemnification, or (ii) where indemnification is granted, to the
extent that the expenses so advanced by the corporation exceed
the indemnification to which such person is entitled.
<PAGE>
(b) The corporation may indemnify each person, though he or
she is not or was not a director, officer, employee or agent of
the corporation, who served at the request of the corporation on
a committee created by the Board to consider and report to it in
respect of any matter. Any such indemnification may be made
under the preceding provisions of this Article X and shall be
subject to the limitations thereof except that (as indicated) any
such committee member need not be nor have been a director,
officer, employee or agent of the corporation.
(c) The provisions of this Article X shall be applicable to
appeals. References to "serving at the request of the corpora
tion" shall include without limitation any service as a director,
officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries. A person who acted in good faith
and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation."
(d) If any section, subsection, paragraph, sentence,
clause, phrase or word in this Article X shall be adjudicated
invalid or unenforceable, such adjudication shall not be deemed
to invalidate or otherwise affect any other section, subsection,
paragraph, sentence, clause, phrase or word of this Article.
(e) The indemnification and advancement of expenses provid
ed by, or granted pursuant to, this Article X shall not be deemed
exclusive of any other rights to which those seeking indemnifica
tion or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in their official capacities and as
to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE XI - Amendments
1. Amendments. Alterations or amendments of these By-Laws
may be made by the stockholders at any annual or special meeting
if the notice of such meeting contains a statement of the
<PAGE>
proposed alteration or amendment, or by the Board of Directors at
any annual, regular or special meeting, provided notice of such
alteration or amendment has been given to each director in
writing at least five (5) days prior to said meeting or has been
waived by all the directors.
101797
bylaws\rmet
EXHIBIT 4.15
Gouvernement du Quebec
L'Inspecteur general
des institutions financieres
Form 5
ARTICLES OF AMENDMENT
The Companies Act, R.S.Q., c. C-38
Part 1A
1 Corporate name
CANADIAN REYNOLDS METALS COMPANY, LTD.
SOCIETE CANADIENNE DE METAUX REYNOLDS, LTEE
2 Present address of the Company:
1501 McGill College Avenue, 26th Floor
No Street name
Montreal
Municipality
Quebec H3A 3N9
Province Postal code
3 Application presented in conformity with Section 123.140 and following
of the Companies Act
4 The company's articles are amended as follows:
Appendix 1 referred in Item 5 of the Articles of Incorporation forming
part of the Certificate of Incorporation dated March 31, 1994 be and is
hereby amended by deleting Sections II.(d) and II.(e)
5 Effective date, if different 6 Denomination sociale (ou numero
from date of filing (see matricule) anterieure a la
instructions) modification, si differente de
celle mentionnee a la case 1
If space is insufficient, attach an appendix in two (2) copies
Signature of Dewey Michael Jones
authorized director Dewey Michael Jones
For departmental use only CA-215 (REV.12-93)
<PAGE>
Quebec
CERTIFICAT DE MODIFICATION
Loi sur les compagnies, Partie IA
(L.R.Q., chap. C-38)
J'atteste par les presentes que la compagnie
SOCIETE CANADIENNE DE METAUX
REYNOLDS, LTEE
et sa version
CANADIAN REYNOLDS METALS COMPANY, LTD.
a modifie ses statuts le 1ER JANVIER 1996, sous l'autorite de la
partie IA de la Loi sur les compagnies, tel qu'indique dans les
statuts de modification ci-joints.
Deposes au registre le 15 decembre 1995
sous le matricule 1140329104
Gouvernement
du Quebec
L'Inspecteur
general des Alfred Vaillancourt
institutions Inspecteur general des institutions financieres par interim
financieres
[IMAGE OF SEAL OMITTED]
<PAGE>
APPENDIX 2
(1) The number of its shareholders is limited to fifty (50), exclusive of
present or former employees of the Company or of a subsidiary.
(2) The directors may, when they deem it expedient:
(a) borrow money upon the credit of the Company;
(b) issue debentures or other securities of the Company, and pledge or
sell the same for such sums and at such prices as may be deemed
expedient;
(c) hypothecate the immovable and movable property or otherwise affect
the movable property of the Company.
<PAGE>
Quebec
CERTIFICAT DE CONSTITUTION
Loi sur les compagnies, Partie IA
(L.R.Q., chap. C-38)
J'atteste par les presentes que la compagnie
SYSTEMES GRAPHIQUES SOUTHERN-CANADA,
LTEE
et sa version
SOUTHERN GRAPHIC SYSTEMS-CANADA, LTD.
a ete constituee le 31 MARS 1994, sous l'autorite de la
partie IA de la Loi sur les compagnies, tel qu'indique dans les
statuts de constitution ci-joints.
Deposes au registre le 12 avril 1994
sous le matricule 1140329104
Gouvernement
du Quebec
L'Inspecteur
general des Jean Marie Blandchard
institutions Inspecteur general des institutions financieres
financieres
S110S14G01S93MA
[IMAGE OF SEAL OMITTED]
<PAGE>
Gouvernement du Quebec A-110220-J9401
L'Inspecteur general
des institutions financieres
Form 1
ARTICLES OF INCORPORATION
The Companies Act, R.S.Q., c. C-38
Part 1A
1 Corporate name
SYSTEMES GRAPHIQUES SOUTHERN-CANADA, LTEE
SOUTHERN GRAPHIC SYSTEMS-CANADA, LTD.
2 Quebec judicial district 3 Precise number or 4 Effective date if
wherein company is minimum and maximum after filing date
setting up its head number of directors
office
Montreal Minimum: 3 Maximum: 10 N/A
5 Description of share capital
The annexed Appendix 1 is incorporated in this form
6 Restrictions (if any) on transfer of shares
No shares of the Company shall be transferred without the approval of the
directors evidenced by a resolution duly adopted by them
7 Limitations (if any) on company activity
None
8 Other provisions
The annexed Appendix 2 is incorporated in this form
9 Incorporators
Name and surname Address and postal code Signature of each incorporator
(if a corporation, give (if a corporation, signature
head office address and of authorized person)
incorporation act)
Bertrand, Maryse 3123 Daulac Road Maryse Bertrand
Montreal, Quebec
H3Y 2A1
______________________________________________________________________________
If space is insufficient, attach an appendix in two (2) copies
- ------------------------------------------------------------------------------
For departmental use only CA-211(REV.12-93)
Gouvernement
du Quebec
Depose le
31 MARS 1994
L'Inspecteur general des
Institutions financieres
<PAGE>
APPENDIX 1
----------
Unlimited number of class A common shares without par value;
Unlimited number of class B common shares without par value;
Unlimited number of class A preferred shares without par value;
Unlimited number of class B preferred shares without par value;
Unlimited number of class C preferred shares without par value; and
Unlimited number of class D preferred shares without par value.
I. The class A common shares and the class B common shares shall have
attached thereto the following rights, privileges, restrictions and
conditions:
(a) Each class A common share shall entitle the holder thereof to one (1)
vote at all meetings of the shareholders of the Company (except
meetings at which only holders of another specified class of shares
are entitled to vote pursuant to the provisions hereof or pursuant to
the provisions of the Companies Act (hereinafter referred to as the
"Act")). The holders of the class B common shares shall not be
entitled to receive notice of, nor to attend or vote at meetings of
the shareholders of the Company (except as required by the provisions
hereof or by the Act).
(b) In the event of the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, or other distribution of
assets of the Company among shareholders for the purpose of
winding-up its affairs, subject to the rights, privileges,
restrictions and conditions attaching to the class A preferred
shares, the class B preferred shares, the class C preferred shares,
the class D preferred shares and to any other class of shares ranking
prior to the class A common shares or the class B common shares, the
holders of the class A common shares and the holders of the class B
common shares shall be entitled to receive the remaining property of
the Company; the class A common shares and the class B common shares
shall rank equally with respect to the payment of dividends and to
the distribution of assets in the event of the liquidation,
dissolution or winding-up of the Company, whether voluntary or
involuntary, or any other distribution of the assets of the Company
among shareholders for the purpose of winding-up its affairs.
II. The class A preferred shares shall have attached thereto the following
rights, privileges, restrictions and conditions:
(a) Each class A preferred share shall entitle the holder thereof to one
(1) vote at all meetings of the shareholders of the Company (except
meetings at which only holders of another specified class of shares
are entitled to vote pursuant to the provisions of the Act).
(b) The holders of the class A preferred shares shall be entitled to
receive during each month, as and when declared by the board of
directors, but always in preference and priority to any payment of
dividends on the other shares of the Company, non-cumulative
dividends at a fixed rate of one percent (1%) per month calculated on
the class A preferred redemption price (as hereinafter in paragraph
II. (g) defined) of each such share payable in money, property or by
the issue of fully paid shares of any class of the Company. The
holders of the class A
<PAGE>
preferred shares shall not be entitled to any
dividend in excess of the dividend hereinbefore provided for.
(c) In the event of the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, or other distribution of
assets of the Company among shareholders for the purpose of
winding-up its affairs, the holders of the class A preferred shares
shall be entitled to receive for each class A preferred share, in
preference and priority to any distribution of the property or assets
of the Company to the holders of the other shares of the Company, an
amount equal to the class A preferred redemption price plus all
declared and unpaid dividends thereon, but shall not be entitled to
share any further in the distribution of the property or assets of
the Company.
(d) The Company may, in the manner hereinafter provided, redeem at any
time all, or from time to time any part, of the outstanding class A
preferred shares on payment for each class A preferred share to be
redeemed of the class A preferred redemption price plus all declared
and unpaid dividends thereon (in paragraphs II. (e) and (f) called
the "redemption price").
(e) Before redeeming any class A preferred shares, the Company shall mail
or deliver to each person who, at the date of such mailing or
delivery, shall be a registered holder of class A preferred shares to
be redeemed, notice of the intention of the Company to redeem such
shares held by such registered holder; such notice shall be delivered
to, or mailed by ordinary prepaid post addressed to, the last address
of such holder as it appears on the records of the Company, or in the
event of the address of any such holder not appearing on the records
of the Company, then to the last address of such holder known to the
Company, at least one (1) day before the date specified for
redemption; such notice shall set out the redemption price, the date
on which the redemption is to take place and, if part only of the
class A preferred shares held by the person to whom it is addressed
is to be redeemed, the number thereof so to be redeemed; on or after
the date so specified for redemption the Company shall pay or cause
to be paid the redemption price to the registered holders of the
class A preferred shares to be redeemed on presentation and surrender
of the certificates for the class A preferred shares so called for
redemption at the registered office of the Company or at such other
place or places as may be specified in such notice, and the
certificates for such class A preferred shares shall thereupon be
cancelled, and the class A preferred shares represented thereby shall
thereupon be redeemed; from and after the date specified for
redemption in such notice, the holders of the class A preferred
shares called for redemption shall cease to be entitled to dividends
in respect of such shares and shall not be entitled to exercise any
of the rights of the holders thereof, except the right to receive the
redemption price, unless payment of the redemption price shall not be
made by the Company in accordance with the foregoing provisions, in
which case the rights of the holders of such shares shall remain
unaffected; on or before the date specified for redemption, the
Company shall have the right to deposit the redemption price of the
class A preferred shares called for redemption in a special account
with any chartered bank or trust company in Canada named in the
notice of redemption, to be paid, without interest, to or to the
order of the respective holders of such class A preferred shares
called for redemption, upon presentation and surrender of the
certificates representing the same and, upon such deposit being made
or upon the date specified for redemption, whichever is later, the
class A preferred shares in respect whereof such deposit shall have
been made, shall be deemed to be redeemed and the rights of the
respective holders thereof, after such deposit or after such
redemption date, as the case may be, shall be limited to receiving,
out of the moneys so deposited, without interest, the redemption
price applicable to their respective class A preferred shares against
presentation and surrender of the certificates representing such
class A preferred shares. If less than all the class A preferred
shares are to
<PAGE>
be redeemed, the shares to be redeemed shall be
redeemed pro rata, disregarding fractions, unless the holders of the
class A preferred shares unanimously agree to the adoption of
another method of selection of the class A preferred shares to be
redeemed. If less than all the class A preferred shares represented
by any certificate be redeemed, a new certificate for the balance
shall be issued.
(f) The Company may purchase for cancellation at any time all, or from
time to time any part, of the class A preferred shares outstanding,
by private contract at any price, with the unanimous consent of the
holders of the class A preferred shares then outstanding, or by
invitation for tenders addressed to all the holders of the class A
preferred shares at the lowest price at which, in the opinion of the
directors, such shares are obtainable but not exceeding the
redemption price thereof. If less than all the class A preferred
shares represented by any certificate be purchased for cancellation,
a new certificate for the balance shall be issued.
(g) For the purposes of the foregoing paragraphs II. (b), (c) and (d),
the "class A preferred redemption price" of each class A preferred
share shall be an amount equal to (i) the monetary consideration
received by the Company upon the issuance of such share (denominated
in the currency in which such consideration was paid to the Company),
if such share has been issued for money; or (ii) the fair market
value of the consideration received by the Company (including,
without limitation, shares of another class of the Company) upon the
issuance of such share, if such share has been issued for a
consideration other than money. Subject to the provisions of the
following sub-paragraph, such fair market value is to be determined
by the directors on the basis of generally accepted accounting and
valuation principles.
The fair market value determined as hereinabove provided for shall be
subject to revision in accordance with any binding agreement with, or
decision by, the appropriate taxation authorities, or any judgment of
a court of competent jurisdiction. In the event that any such
agreement, decision or judgment shall result in a final determination
under the provisions of the appropriate taxation legislation and the
amount thereby determined is an amount other than the amount for
which such share was originally issued as determined by the directors
in accordance with the preceding sub-paragraph, such finally
determined amount for the purpose of the appropriate taxation
legislation shall then be deemed to be the fair market value of the
consideration received by the Company upon the issuance of such class
A preferred share.
(h) In the event that only part of the amount of the consideration
received by the Company for any class A preferred share issued by the
Company is added to the issued and paid up capital account for the
class of shares of which such class A preferred share forms part,
such class A preferred share shall be deemed to have been issued for
the full amount of the consideration received, for all purposes of
these articles (except only the issued and paid up capital of such
shares) including, but without limiting the generality of the
foregoing, dividend rights, redemption rights and rights upon
liquidation and dissolution.
(i) No change to any of the provisions of paragraphs II. (a) to (h) or of
this paragraph (i) shall have any force or effect until it has been
approved by a majority of not less than two-thirds (2/3) of the votes
cast by the holders of the class A preferred shares, voting
separately as a class at a meeting of such holders specially called
for that purpose, or by a resolution in writing signed by all the
holders of the class A preferred shares, in addition to any other
approval required by the Act.
<PAGE>
III. The class B preferred shares shall have attached thereto the following
rights, privileges, restrictions and conditions:
(a) Subject to the provisions of the Act or as otherwise expressly
provided herein, the holders of the class B preferred shares shall
not be entitled to receive notice of, nor to attend or vote at
meetings of the shareholders of the Company.
(b) The holders of the class B preferred shares shall be entitled to
receive during each month, as and when declared by the board of
directors, but always in preference and priority to any payment of
dividends on the class C preferred shares, the class D preferred
shares, the class A common shares and the class B common shares or
any other shares ranking junior to the class B preferred shares,
non-cumulative dividends at a fixed rate of one percent (1%) per
month calculated on the class B preferred redemption price (as
hereinafter in paragraph III. (g) defined) of each such share
payable in money, property or by the issue of fully paid shares of
any class of the Company. The holders of the class B preferred
shares shall not be entitled to any dividend in excess of the
dividend hereinbefore provided for.
(c) In the event of the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, or other distribution of
assets of the Company among shareholders for the purpose of
winding-up its affairs, the holders of the class B preferred shares
shall be entitled to receive for each class B preferred share, in
preference and priority to any distribution of the property or
assets of the Company to the holders of the class C preferred
shares, the class D preferred shares, the class A and the class B
common shares or any other shares ranking junior to the class B
preferred shares, an amount equal to the class B preferred
redemption price plus all declared and unpaid dividends thereon, but
shall not be entitled to share any further in the distribution of
the property or assets of the Company.
(d) The Company may, in the manner hereinafter provided, redeem at any
time all, or from time to time any part, of the outstanding class B
preferred shares on payment for each class B preferred share to be
redeemed of the class B preferred redemption price plus all declared
and unpaid dividends thereon (in paragraphs III. (e) and (f) called
the "redemption price").
(e) Before redeeming any class B preferred shares, the Company shall
mail or deliver to each person who, at the date of such mailing or
delivery, shall be a registered holder of class B preferred shares
to be redeemed, notice of the intention of the Company to redeem
such shares held by such registered holder; such notice shall be
delivered to, or mailed by ordinary prepaid post addressed to, the
last address of such holder as it appears on the records of the
Company, or in the event of the address of any such holder not
appearing on the records of the Company, then to the last address of
such holder known to the Company, at least one (1) day before the
date specified for redemption; such notice shall set out the
redemption price, the date on which the redemption is to take place
and, if part only of the class B preferred shares held by the person
to whom it is addressed is to be redeemed, the number thereof so to
be redeemed; on or after the date so specified for redemption the
Company shall pay or cause to be paid the redemption price to the
registered holders of the class B preferred shares to be redeemed on
presentation and surrender of the certificates for the class B
preferred shares so called for redemption at the head office of the
Company or at such other place or places as may be specified in such
notice, and the certificates for such class B preferred shares shall
thereupon be cancelled, and the class B preferred shares represented
thereby shall thereupon be redeemed; from and after the date
specified for redemption in such notice, the holders of the class B
preferred shares called for redemption shall cease to be entitled to
dividends in respect of such shares and shall not be entitled to
exercise any of the rights of
<PAGE>
the holders thereof, except the right
to receive the redemption price, unless payment of the redemption
price shall not be made by the Company in accordance with the
foregoing provisions, in which case the rights of the holders of
such shares shall remain unaffected; on or before the date
specified for redemption, the Company shall have the right to
deposit the redemption price of the class B preferred shares called
for redemption in a special account with any chartered bank or trust
company in Canada named in the notice of redemption, to be paid,
without interest, to or to the order of the respective holders of
such class B preferred shares called for redemption, upon
presentation and surrender of the certificates representing the same
and, upon such deposit being made or upon the date specified for
redemption, whichever is later, the class B preferred shares in
respect whereof such deposit shall have been made, shall be deemed
to be redeemed and the rights of the respective holders hereof,
after such deposit or after such redemption date, as the case may
be, shall be limited to receiving, out of the moneys so deposited,
without interest, the redemption price applicable to their
respective class B preferred shares against presentation and
surrender of the certificates representing such class B preferred
shares. If less than all the class B preferred shares are to be
redeemed, the shares to be redeemed shall be redeemed pro rata,
disregarding fractions, unless the holders of the class B preferred
shares unanimously agree to the adoption of another method of
selection of the class B preferred shares to be redeemed. If less
than all the class B preferred shares represented by any certificate
be redeemed, a new certificate for the balance shall be issued.
(f) The Company may purchase for cancellation at any time all, or from
time to time any part, of the class B preferred shares outstanding,
by private contract at any price, with the unanimous consent of the
holders of the class B preferred shares then outstanding, or by
invitation for tenders addressed to all the holders of the class B
preferred shares at the lowest price at which, in the opinion of the
directors, such shares are obtainable but not exceeding the
redemption price thereof. If less than all the class B preferred
shares represented by any certificate be purchased for cancellation,
a new certificate for the balance shall be issued.
(g) For the purposes of the foregoing paragraphs III. (b), (c) and (d),
the "class B preferred redemption price" of each class B preferred
share shall be an amount equal to (i) the monetary consideration
received by the Company upon the issuance of such share (denominated
in the currency in which such consideration was paid to the
Company), if such share has been issued for money; or (ii) the fair
market value of the consideration received by the Company
(including, without limitation, shares of another class of the
Company) upon the issuance of such share, if such share has been
issued for a consideration other than money. Subject to the
provisions of the following sub-paragraph, such fair market value is
to be determined by the directors on the basis of generally accepted
accounting and valuation principles.
The fair market value determined as hereinabove provided for shall
be subject to revision in accordance with any binding agreement
with, or decision by, the appropriate taxation authorities, or any
judgment of a court of competent jurisdiction. In the event that
any such agreement, decision or judgment shall result in a final
determination under the provisions of the appropriate taxation
legislation and the amount thereby determined is an amount other
than the amount for which such share was originally issued as
determined by the directors in accordance with the preceding
subparagraph, such finally determined amount for the purpose of the
appropriate taxation legislation shall then be deemed to be the fair
market value of the consideration received by the Company upon the
issuance of such class B preferred share.
(h) In the event that only part of the amount of the consideration
received by the Company for any class B preferred share issued by
the Company is added to the issued and paid up capital
<PAGE>
account for the class of shares of which such
class B preferred share forms part, such class B
preferred share shall be deemed to have been
issued for the full amount of the consideration received, for all
purposes of these articles (except only the issued and paid up
capital of such shares) including, but without limiting the
generality of the foregoing, dividend rights, redemption rights and
rights upon liquidation and dissolution.
(i) No change to any of the provisions of paragraphs III. (a) to (h) or
of this paragraph (i) shall have any force or effect until a by-law
has been approved by a majority of not less than two-thirds (2/3) of
the votes cast by the holders of the class B preferred shares,
voting separately as a class at a meeting of such holders specially
called for that purpose, or by a resolution in writing signed by all
the holders of the class B preferred shares, in addition to any
other approval required by the Act.
IV. The class C preferred shares shall have attached thereto the following
rights, privileges, restrictions and conditions:
(a) Each class C preferred share shall entitle the holder thereof to one
(1) vote at all meetings of the shareholders of the Company (except
meetings at which only holders of another specified class of shares
are entitled to vote pursuant to the provisions hereof or pursuant
to the Act).
(b) The holders of the class C preferred shares shall be entitled to
receive during each month, as and when declared by the board of
directors, but always in preference and priority to any payment of
dividends on the class D preferred shares, the class A and the class
B common shares or any other shares ranking junior to the class C
preferred shares, non-cumulative dividends at a fixed rate of one
percent (1%) per month calculated on the class C preferred
redemption price (as hereinafter in paragraph IV. (h) defined) of
each such share payable in money, property or by the issue of fully
paid shares of any class of the Company. The holders of the class C
preferred shares shall not be entitled to any dividend in excess of
the dividend hereinbefore provided for.
(c) In the event of the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, or other distribution of
assets of the Company among shareholders for the purpose of
winding-up its affairs, the holders of the class C preferred shares
shall be entitled to receive for each class C preferred share, in
preference and priority to any distribution of the property or
assets of the Company to the holders of the class D preferred
shares, the class A and the class B common shares or any other
shares ranking junior to the class C preferred shares, an amount
equal to the class C preferred redemption price plus all declared
and unpaid dividends thereon, but shall not be entitled to share any
further in the distribution of the property or assets of the
Company.
(d) The Company may, in the manner hereinafter provided, redeem at any
time all, or from time to time any part, of the outstanding class C
preferred shares on payment for each class C preferred share to be
redeemed of the class C preferred redemption price plus all declared
and unpaid dividends thereon (in paragraphs IV. (e), (f) and (g)
called the "redemption price").
(e) Before redeeming any class C preferred shares, the Company shall
mail or deliver to each person who, at the date of such mailing or
delivery, shall be a registered holder of class C preferred shares
to be redeemed, notice of the intention of the Company to redeem
such shares held by such registered holder; such notice shall be
delivered to, or mailed by ordinary prepaid post addressed to, the
last address of such holder as it appears on the records of the
<PAGE>
Company, or in the event of the address of any such holder not
appearing on the records of the Company, then to the last address of
such holder known to the Company, at least one (1) day before the
date specified for redemption; such notice shall set out the
redemption price, the date on which the redemption is to take place
and, if part only of the class C preferred shares held by the person
to whom it is addressed is to be redeemed, the number thereof so to
be redeemed; on or after the date so specified for redemption the
Company shall pay or cause to be paid the redemption price to the
registered holders of the class C preferred shares to be redeemed on
presentation and surrender of the certificates for the class C
preferred shares so called for redemption at the head office of the
Company or at such other place or places as may be specified in such
notice, and the certificates for such class C preferred shares shall
thereupon be cancelled, and the class C preferred shares represented
thereby shall thereupon be redeemed; from and after the date
specified for redemption in such notice, the holders of the class C
preferred shares called for redemption shall cease to be entitled to
dividends in respect of such shares and shall not be entitled to
exercise any of the rights of the holders thereof, except the right
to receive the redemption price, unless payment of the redemption
price shall not be made by the Company in accordance with the
foregoing provisions, in which case the rights of the holders of
such shares shall remain unaffected; on or before the date specified
for redemption, the Company shall have the right to deposit the
redemption price of the class C preferred shares called for
redemption in a special account with any chartered bank or trust
company in Canada named in the notice of redemption, to be paid,
without interest, to or to the order of the respective holders of
such class C preferred shares called for redemption, upon
presentation and surrender of the certificates representing the same
and, upon such deposit being made or upon the date specified for
redemption, whichever is later, the class C preferred shares in
respect whereof such deposit shall have been made, shall be deemed
to be redeemed and the rights of the respective holders thereof,
after such deposit or after such redemption date, as the case may
be, shall be limited to receiving, out of the moneys so deposited,
without interest, the redemption price applicable to their
respective class C preferred shares against presentation and
surrender of the certificates representing such class C preferred
shares. If less than all the class C preferred shares are to be
redeemed, the shares to be redeemed shall be redeemed pro rata,
disregarding fractions, unless the holders of the class C preferred
shares unanimously agree to the adoption of another method of
selection of the class C preferred shares to be redeemed. If less
than all the class C preferred shares represented by any certificate
be redeemed, a new certificate for the balance shall be issued.
(f) A holder of class C preferred shares shall be entitled to require
the Company to redeem at any time all, or from time to time any
part, of the class C preferred shares registered in the name of such
holder by tendering to the Company at its head office the share
certificate(s) representing the class C preferred shares which the
registered holder desires to have the Company redeem together with a
request in writing specifying (i) the number of class C preferred
shares which the registered holder desires to have redeemed by the
Company and (ii) the business day (in this paragraph referred to as
the "redemption date") on which the holder desires to have the
Company redeem such class C preferred shares, which redemption date
shall not be less than five (5) days after the day on which the
request in writing is given to the Company. Upon receipt of the
share certificate(s) representing the class C preferred shares which
the registered holder desires to have the Company redeem together
with such a request, the Company shall on, or at its option, before,
the redemption date redeem such class C preferred shares by paying
to the registered holder thereof, for each share to be redeemed, an
amount equal to the redemption price in respect thereof; such
payment shall be made by cheque payable at par at any branch of the
Company's bankers for the time being in Canada. The said class C
preferred shares shall be deemed to be redeemed on the date
<PAGE>
of payment of the redemption price and from and after such date such
class C preferred shares shall cease to be entitled to dividends and
the holders thereof shall not be entitled to exercise any of the
rights of the holders of class C preferred shares in respect
thereof. Notwithstanding the foregoing, the Company shall only be
obliged to redeem class C preferred shares so tendered for
redemption to the extent that such redemption would not be contrary
to any applicable law, and if such redemption of any such class C
preferred shares would be contrary to any applicable law, the
Company shall only be obliged to redeem such class C preferred
shares to the extent that the moneys applied thereto shall be such
amount (rounded to the next lower multiple of one hundred dollars
($100.00)) as would not be contrary to such law, in which case the
Company shall pay to each holder his pro rata share of the purchase
moneys allocable. If less than all the class C preferred shares
represented by any certificate be redeemed, a new certificate for
the balance shall be issued.
(g) The Company may purchase for cancellation at any time all, or from
time to time any part, of the class C preferred shares outstanding,
by private contract at any price, with the unanimous consent of the
holders of the class C preferred shares then outstanding, or by
invitation for tenders addressed to all the holders of the class C
preferred shares at the lowest price at which, in the opinion of the
directors, such shares are obtainable but not exceeding the
redemption price thereof. If less than all the class C preferred
shares represented by any certificate be purchased for cancellation,
a new certificate for the balance shall be issued.
(h) For the purposes of the foregoing paragraphs IV. (b), (c) and (d),
the "class C preferred redemption price" of each class C preferred
share shall be an amount equal to (i) the monetary consideration
received by the Company upon the issuance of such share (denominated
in the currency in which such consideration was paid to the
Company), if such share has been issued for money; or (ii) the fair
market value of the consideration received by the Company
(including, without limitation, shares of another class of the
Company) upon the issuance of such share, if such share has been
issued for a consideration other than money. Subject to the
provisions of the following sub-paragraph, such fair market value is
to be determined by the directors on the basis of generally accepted
accounting and valuation principles.
The fair market value determined as hereinabove provided for shall
be subject to revision in accordance with any binding agreement
with, or decision by, the appropriate taxation authorities, or any
judgment of a court of competent jurisdiction. In the event that
any such agreement, decision or judgment shall result in a final
determination under the provisions of the appropriate taxation
legislation and the amount thereby determined is an amount other
than the amount for which such share was originally issued as
determined by the directors in accordance with the preceding
sub-paragraph, such finally determined amount for the purpose of the
appropriate taxation legislation shall then be deemed to be the fair
market value of the consideration received by the Company upon the
issuance of such class C preferred share.
(i) In the event that only part of the amount of the consideration
received by the Company for any class C preferred share issued by
the Company is added to the issued and paid up capital account for
the class of shares of which such class C preferred share forms
part, such class C preferred share shall be deemed to have been
issued for the full amount of the consideration received, for all
purposes of these articles (except only the issued and paid up
capital of such class C preferred shares) including, but without
limiting the generality of the foregoing, dividend rights,
redemption rights and rights upon liquidation and dissolution.
(j) No change to any of the provisions of paragraphs IV. (a) to (i) or
of this paragraph (j) shall have any force or effect until a by-law
has been approved by a majority of not less than two-
<PAGE>
thirds (2/3) of the votes cast by the holders of
the class C preferred shares, voting separately
as a class at a meeting of such holders specially
called for that purpose, or by a resolution in writing signed by all
the holders of the class C preferred shares, in addition to any
other approval required by the Act.
V. The class D preferred shares shall have attached thereto the following
rights, privileges, restrictions and conditions:
(a) Subject to the provisions of the Act or as otherwise expressly
provided herein, the holders of the class D preferred shares shall
not be entitled to receive notice of, nor to attend or vote at
meetings of the shareholders of the Company.
(b) The holders of the class D preferred shares shall be entitled to
receive during each month, as and when declared by the board of
directors, but always in preference and priority to any payment of
dividends on the class A and the class B common shares or any other
shares ranking junior to the class D preferred shares,
non-cumulative dividends at a fixed rate of one percent (1%) per
month calculated on the class D preferred redemption price (as
hereinafter in paragraph V. (h) defined) of each such share payable
in money, property or by the issue of fully paid shares of any class
of the Company. The holders of the class D preferred shares shall
not be entitled to any dividend in excess of the dividend
hereinbefore provided for.
(c) In the event of the liquidation, dissolution or winding-up of the
Company, whether voluntary or involuntary, or other distribution of
assets of the Company among shareholders for the purpose of
winding-up its affairs, the holders of the class D preferred shares
shall be entitled to receive for each class D preferred share, in
preference and priority to any distribution of the property or
assets of the Company to the holders of the class A and the class B
common shares or any other shares ranking junior to the class D
preferred shares, an amount equal to the class D preferred
redemption price plus all declared and unpaid dividends thereon, but
shall not be entitled to share any further in the distribution of
the property or assets of the Company.
(d) The Company may, in the manner hereinafter provided, redeem at any
time all, or from time to time any part, of the outstanding class D
preferred shares on payment for each class D preferred share to be
redeemed of the class D preferred redemption price plus all declared
and unpaid dividends thereon (in paragraphs V. (e), (f) and (g)
called the "redemption price").
(e) Before redeeming any class D preferred shares, the Company shall
mail or deliver to each person who, at the date of such mailing or
delivery, shall be a registered holder of class D preferred shares
to be redeemed, notice of the intention of the Company to redeem
such shares held by such registered holder; such notice shall be
delivered to, or mailed by ordinary prepaid post addressed to, the
last address of such holder as it appears on the records of the
Company, or in the event of the address of any such holder not
appearing on the records of the Company, then to the last address of
such holder known to the Company, at least one (1) day before the
date specified for redemption; such notice shall set out the
redemption price, the date on which the redemption is to take place
and, if part only of the class D preferred shares held by the person
to whom it is addressed is to be redeemed, the number thereof so to
be redeemed; on or after the date so specified for redemption the
Company shall pay or cause to be paid the redemption price to the
registered holders of the class D preferred shares to be redeemed on
presentation and surrender of the certificates for the class D
preferred shares so called for redemption at the registered office
of the Company or at such other place or places as may be specified
in such notice, and the certificates for such class D preferred
<PAGE>
shares shall thereupon be cancelled, and the class D preferred
shares represented thereby shall thereupon be redeemed; from and
after the date specified for redemption in such notice, the holders
of the class D preferred shares called for redemption shall cease to
be entitled to dividends in respect of such shares and shall not be
entitled to exercise any of the rights of the holders thereof,
except the right to receive the redemption price, unless payment of
the redemption price shall not be made by the Company in accordance
with the foregoing provisions, in which case the rights of the
holders of such shares shall remain unaffected; on or before the
date specified for redemption, the Company shall have the right to
deposit the redemption price of the class D preferred shares called
for redemption in a special account with any chartered bank or trust
company in Canada named in the notice of redemption, to be paid,
without interest, to or to the order of the respective holders of
such class D preferred shares called for redemption, upon
presentation and surrender of the certificates representing the same
and, upon such deposit being made or upon the date specified for
redemption, whichever is later, the class D preferred shares in
respect whereof such deposit shall have been made, shall be deemed
to be redeemed and the rights of the respective holders thereof,
after such deposit or after such redemption date, as the case may
be, shall be limited to receiving, out of the moneys so deposited,
without interest, the redemption price applicable to their
respective class D preferred shares against presentation and
surrender of the certificates representing such class D preferred
shares. If less than all the class D preferred shares are to be
redeemed, the shares to be redeemed shall be redeemed pro rata,
disregarding fractions, unless the holders of the class D preferred
shares unanimously agree to the adoption of another method of
selection of the class D preferred shares to be redeemed. If less
than all the class D preferred shares represented by any certificate
be redeemed, a new certificate for the balance shall be issued.
(f) A holder of class D preferred shares shall be entitled to require
the Company to redeem at any time all, or from time to time any
part, of the class D preferred shares registered in the name of such
holder by tendering to the Company at its head office the share
certificate(s) representing the class D preferred shares which the
registered holder desires to have the Company redeem together with a
request in writing specifying (i) the number of class D preferred
shares which the registered holder desires to have redeemed by the
Company and (ii) the business day (in this paragraph referred to as
the "redemption date") on which the holder desires to have the
Company redeem such class D preferred shares, which redemption date
shall not be less than five (5) days after the day on which the
request in writing is given to the Company. Upon receipt of the
share certificate(s) representing the class D preferred shares which
the registered holder desires to have the Company redeem together
with such a request, the Company shall on, or at its option, before,
the redemption date redeem such class D preferred shares by paying
to the registered holder thereof, for each share to be redeemed, an
amount equal to the redemption price in respect thereof; such
payment shall be made by cheque payable at par at any branch of the
Company's bankers for the time being in Canada. The said class D
preferred shares shall be deemed to be redeemed on the date of
payment of the redemption price and from and after such date such
class D preferred shares shall cease to be entitled to dividends and
the holders thereof shall not be entitled to exercise any of the
rights of the holders of class D preferred shares in respect
thereof. Notwithstanding the foregoing, the Company shall only be
obliged to redeem class D preferred shares so tendered for
redemption to the extent that such redemption would not be contrary
to any applicable law, and if such redemption of any such class D
preferred shares would be contrary to any applicable law, the
Company shall only be obliged to redeem such class D preferred
shares to the extent that the moneys applied thereto shall be such
amount (rounded to the next lower multiple of one hundred dollars
($100.00)) as would not be contrary to such law, in which case the
Company shall pay to each holder his pro rata share of the purchase
<PAGE>
moneys allocable. If less than all the class D preferred shares
represented by any certificate be redeemed, a new certificate for
the balance shall be issued.
(g) The Company may purchase for cancellation at any time all, or from
time to time any part, of the class D preferred shares outstanding,
by private contract at any price, with the unanimous consent of the
holders of the class D preferred shares then outstanding, or by
invitation for tenders addressed to all the holders of the class D
preferred shares at the lowest price at which, in the opinion of the
directors, such shares are obtainable but not exceeding the
redemption price thereof. If less than all the class D preferred
shares represented by any certificate be purchased for cancellation,
a new certificate for the balance shall be issued.
(h) For the purposes of the foregoing paragraphs V. (b), (c) and (d),
the "class D preferred redemption price" of each class D preferred
share shall be an amount equal to (i) the monetary consideration
received by the Company upon the issuance of such share (denominated
in the currency in which such consideration was paid to the
Company), if such share has been issued for money; or (ii) the fair
market value of the consideration received by the Company
(including, without limitation, shares of another class of the
Company) upon the issuance of such share, if such share has been
issued for a consideration other than money. Subject to the
provisions of the following sub-paragraph, such fair market value is
to be determined by the directors on the basis of generally accepted
accounting and valuation principles.
The fair market value determined as hereinabove provided for shall
be subject to revision in accordance with any binding agreement
with, or decision by, the appropriate taxation authorities, or any
judgment of a court of competent jurisdiction. In the event that
any such agreement, decision or judgment shall result in a final
determination under the provisions of the appropriate taxation
legislation and the amount thereby determined is an amount other
than the amount for which such share was originally issued as
determined by the directors in accordance with the preceding
sub-paragraph, such finally determined amount for the purpose of the
appropriate taxation legislation shall then be deemed to be the fair
market value of the consideration received by the Company upon the
issuance of such class D preferred share.
(i) In the event that only part of the amount of the consideration
received by the Company for any class D preferred share issued by
the Company is added to the issued and paid up capital account for
the class of shares of which such class D preferred share forms
part, such class D preferred share shall be deemed to have been
issued for the full amount of the consideration received, for all
purposes of these articles (except only the issued and paid up
capital of such shares) including, but without limiting the
generality of the foregoing, dividend rights, redemption rights and
rights upon liquidation and dissolution.
(j) No change to any of the provisions of paragraphs V. (a) to (i) or of
this paragraph (j) shall have any force or effect until a by-law has
been approved by a majority of not less than two-thirds (2/3) of the
votes cast by the holders of the class D preferred shares, voting
separately as a class at a meeting of such holders specially called
for that purpose, or by a resolution in writing signed by all the
holders of the class D preferred shares, in addition to any other
approval required by the Act.
<PAGE>
APPENDIX 2
(1) The number of its shareholders is limited to fifty (50), exclusive
of present or former employees of the Company or of a subsidiary.
(2) The Company shall not make a distribution to the public of any of
its securities.
(3) The directors may, when they deem it expedient:
(a) borrow money upon the credit of the Company;
(b) issue debentures or other securities of the Company, and
pledge or sell the same for such sums and at such prices as
may be deemed expedient;
(c) hypothecate the immovable and movable property or otherwise
affect the movable property of the Company.
<PAGE>
Gouvernement du Quebec A-110220-J9401
L'Inspecteur general
des institutions financieres
Form 4
NOTICE CONCERNING COMPOSITION
OF THE BOARD OF DIRECTORS
The Companies Act, R.S.Q., c. C-38
Part 1A
1 Corporate name
SYSTEMES GRAPHIQUES SOUTHERN-CANADA, LTEE
SOUTHERN GRAPHIC SYSTEMS-CANADA, LTD.
2 Present address of the company:
1420 Sherbrooke Street West, Suite 802
No Street name
Montreal
Municipality
Quebec H3G 1K9
Province Postal code
Full residential address
Name and surname (including postal code)
3 The directors of the Company are:
Christino, Thomas P. 6601 West Broad Street, Richmond, Virginia, U.S.A.
23230
Taylor, Julian H. 6601 West Broad Street, Richmond, Virginia, U.S.A.
23230
Jones, D. Michael 6601 West Broad Street, Richmond, Virginia, U.S.A.
23230
Hammond, T.L. 2929 South Floyd Street, Louisville, Kentucky,
U.S.A. 40213
______________________________________________________________________________
If space is insufficient, attach an appendix in two (2) copies
The Company
Post occupied
Maryse Bertrand by signatory Incorporator
(signature)
______________________________________________________________________________
For departmental use only CA214REV.12-93)
Gouvernement
du Quebec
Depose le
31 MARS 1994
L'Inspecteur general des
Institutions financieres
<PAGE>
Gouvernement du Quebec A-110220-J9401
L'Inspecteur general
des institutions financieres
Form 2
NOTICE OF ADDRESS OF HEAD OFFICE
The Companies Act, R.S.Q., c. C-38
Part 1A
1 Corporate name
SYSTEMES GRAPHIQUES SOUTHERN-CANADA, LTEE
SOUTHERN GRAPHIC SYSTEMS-CANADA, LTD.
2 Notice is hereby given that the address of the head office of the company,
within the limits of the judicial district indicated in the articles, is as
follows:
1420 Sherbrooke Street West, Suite 802
No Street name
Montreal
Municipality
Quebec H3G 1K9
Province Postal code
The Company
Post occupied
Maryse Bertrand by signatory Incorporator
(signature)
_______________________________________________________________________________
For departmental use only CA-212(REV.12-93)
Gouvernement
du Quebec
Depose le
31 MARS 1994
L'Inspecteur general des
Institutions financieres
EXHIBIT 4.16
SOCIETE CANADIENNE DE METAUX REYNOLDS, LTEE/
CANADIAN REYNOLDS METALS COMPANY, LTD.
GENERAL BY-LAW NO. 1
being the general by-laws of the Company.
ARTICLE ONE
DEFINITIONS
SECTION 1.01 In this by-law and all other by-laws of the
Company, unless the context otherwise requires:
(a) "Act" means the Companies Act (Quebec) (R.S.Q.
1977, c. C-38), as amended by the Act modifying the
Companies Act and other statutory dispositions, S.Q.
1979, c. 31, as from time to time further amended, and
every statute that may be substituted therefor and, in
the case of such amendment or substitution, any
reference in the by-laws of the Company to any
provision of the Act shall be read as referring to the
amended or substituted provisions therefor;
(b) "articles" means the articles of incorporation of
the Company attached to the certificate of
incorporation dated March 31, 1994, as from time to
time amended;
(c) "by-law" means this by-law and any other by-law of
the Company from time to time in force and effect;
(d) words importing the singular number shall include
the plural and vice versa; words importing the
masculine gender shall include the feminine and neuter
genders and vice-versa; words importing persons shall
include bodies corporate, corporations, companies,
partnerships, syndicates, trusts and any number or
aggregate of individuals;
(e) the headings used in the by-laws are inserted for
reference purposes only and are not to be considered or
taken into account in construing the terms or
provisions thereof or to be deemed in any way to
clarify, modify or explain the effect of any such terms
of provisions; and
(f) all terms contained in the by-laws and which are
defined in the Act shall have the meanings given to
such terms in the Act. In the case of any conflict
between the Act, the unanimous shareholder agreement
(if any), the articles and the by-laws of the Company,
the Act shall prevail over the unanimous shareholder
agreement, the articles and the by-laws, the unanimous
shareholder agreement shall prevail over the articles
and the by-laws and the articles shall prevail over the
by-laws.
<PAGE>
ARTICLE TWO
HEAD OFFICE
SECTION 2.01 The Company shall maintain a head office in Quebec
in the judicial district indicated in its articles. The Company
may change the address of its head office within the limits of
the judicial district indicated in its articles by a resolution
of its board of directors. It may also transfer its head office
to another judicial district by amending its articles and such
transfer shall have effect as of the date of the amendment to the
articles.
ARTICLE THREE
FINANCIAL YEAR
SECTION 3.01 The fiscal year of the Company shall end on the
31st day of December in each year, or on such other date as the
board of directors may from time to time by resolution determine.
ARTICLE FOUR
CORPORATE SEAL
SECTION 4.01 The Company may have one or more corporate seals
which shall be such as the board of directors may by resolution
from time to time adopt and change.
ARTICLE FIVE
DIRECTORS
SECTION 5.01 NUMBER AND POWERS. The Company shall be managed
by a board of directors consisting of such fixed number, or
minimum and maximum number, of directors as may be set out in the
articles.
SECTION 5.02 QUALIFICATIONS. Subject to any provision to the
contrary in the articles, a director of the Company need not be a
shareholder of the Company or a resident of Canada or of Quebec.
Moreover, any natural person may be a director of the Company,
with the exception of a person under the age of eighteen (18)
years, an interdicted person, a person of unsound mind who has
been declared incapable by a court of another province or another
country, and an undischarged bankrupt.
SECTION 5.03 FILLING OF VACANCIES. Subject to the Act, if a
vacancy occurs in the board of directors, a quorum of the board
of directors may appoint a qualified person to fill the vacancy
for the remainder of the term of the director giving rise to the
vacancy.
SECTION 5.04 TERM OF OFFICE. A director's term of office shall
commence on the date of the meeting at which he is elected or
appointed and shall terminate at the annual meeting next
following his election or appointment (unless re-elected) or, if
an election of the board of directors is not held at such meeting
or if such meeting does not occur, on the date on which his
successor is elected or appointed. A director's term of office
shall also terminate if he dies or resigns, or is removed or
ceases to be qualified to act as a director.
SECTION 5.05 VACATION OF OFFICE. The office of a director
shall ipso facto be vacated if:
(a) he dies;
<PAGE>
(b) he resigns his office, by notice in writing to the
Company, such resignation to be effective immediately
upon receipt thereof by the Company unless by its terms
it is made effective at a later date;
(c) subject to the provisions of the articles, he is
removed from office in accordance with the provisions
of the Act by a resolution of the shareholders who are
entitled to elect directors; or
(d) he ceases to be qualified to be a director.
SECTION 5.06 ELECTION. Directors shall be elected by the
shareholders by ordinary resolution passed on a ballot at a
meeting of shareholders entitled to elect directors.
A retiring director shall remain in office until the
adjournment or termination of the meeting at which his successor
has been elected, unless such meeting was called for the purpose
of removing him from office as a director, in which case the
director so removed shall vacate office forthwith upon the
passing of the resolution for his removal.
SECTION 5.07 VALIDATION. All acts done at any meeting of the
directors by any person or persons acting as a director or
directors shall, notwithstanding that it be afterwards discovered
that there was a defect in the appointment of any such director
or directors or person or persons acting as aforesaid, or that
they or any of them were disqualified as directors, be as valid
as if every such person or persons had been duly appointed and
qualified as directors.
SECTION 5.08 PLACE OF MEETING. Meetings of the board of
directors shall be held at the head office of the Company or at
any other place as the officers or directors convening the
meeting may from time to time determine. A meeting of the board
of directors may be convened at any time by the chairman of the
board of directors, the president, any vice-president, the
secretary, any assistant-secretary or by two or more directors
(other than any of the foregoing officers).
SECTION 5.09 NOTICE. Notice of the time and place for the
holding of any such meeting shall be given verbally or delivered
or mailed or telegraphed or sent by any other form of transmitted
or recorded message to each director at his latest address as
shown on the books of the Company not less than two (2) days
before the date of the meeting.
For the first meeting of the board of directors to be
held immediately following the election of directors at an annual
or special meeting of the shareholders, no notice of such meeting
need be given to the directors in order for the meeting to be
duly constituted, provided a quorum of the directors is present.
SECTION 5.10 WAIVER OF NOTICE. Notice of any meeting of the
board of directors or any irregularity in any meeting or in the
notice thereof may be waived by any director in writing (which
shall include waiver by telegram, cable or telex) addressed to
the Company at its head office; such waiver may be validly given
either before or after the meeting to which such waiver relates.
The attendance of a director at a meeting of directors
constitutes a waiver of notice of the meeting except where a
director attends a meeting for the express purpose of objecting
to the holding of the meeting on the grounds that the manner of
calling the meeting was irregular.
SECTION 5.11 PARTICIPATION BY TELEPHONE. A director may, if
all the directors of the Company consent, participate in a
meeting of the board of directors by such means, particularly by
telephone as permits all persons participating in the meeting to
hear each other. A director participating in such a meeting by
such means shall be deemed to be present at that meeting.
SECTION 5.12 ADJOURNMENT. Any meeting of the board of
directors may be adjourned from time to time by the chairman of
the meeting, with the consent of the meeting, to such time and
place as he may fix. No notice of an adjourned meeting need be
given to any director. Any adjourned meeting shall be duly
<PAGE>
constituted if held in accordance with the terms of the
adjournment and a quorum is present thereat. The directors who
formed a quorum at the original meeting are not required to form
the quorum at the adjourned meeting. If there is no quorum
present at the adjourned meeting, the original meeting shall be
deemed to have terminated forthwith after its adjournment.
SECTION 5.13 QUORUM. The directors may, from time to time, fix
by resolution the quorum for meetings of directors, but until
otherwise fixed, a majority of the directors in office from time
to time shall constitute a quorum. Any meeting of directors at
which a quorum is present shall be competent to exercise all or
any of the authorities, powers and discretions by or under the by-
laws of the Company for the time being vested in or exercisable
by the directors generally. Where the Company has only one
director, that director shall constitute the meeting.
SECTION 5.14 VOTING. Questions arising at any meeting of the
board of directors at which a quorum is present shall be decided
by a majority of votes cast. In case of an equality of votes,
the chairman of the meeting shall not be entitled to a second or
casting vote.
SECTION 5.15 RESOLUTION IN WRITING IN LIEU OF MEETING. A
resolution in writing, signed by all the directors entitled to
vote on that resolution at a meeting of directors or of the
executive committee of directors, as the case may be, is as valid
as if it had been passed at a meeting of directors or of the
executive committee of directors, respectively.
A copy of every such resolution shall be kept with the
minutes of the proceedings of the board of directors or executive
committee of directors.
SECTION 5.16 REMUNERATION OF DIRECTORS. Subject to the
articles or any unanimous shareholders' agreement, the
remuneration to be paid to the directors shall be such as the
board of directors shall from time to time by resolution
determine and such remuneration shall be in addition to the
salary paid to any officer of the Company who is also a member of
the board of directors. The directors may also by resolution
award special remuneration to any director undertaking any
special services on the Company's behalf other than the routine
work ordinarily required of a director by the Company. The
confirmation of any such resolution or resolutions by the
shareholders shall not be required.
ARTICLE SIX
SUBMISSION OF CONTRACTS OR
TRANSACTIONS TO SHAREHOLDERS FOR APPROVAL
SECTION 6.01 The board of directors in its discretion may
submit any contract, act or transaction for approval,
ratification or confirmation at any annual meeting of the
shareholders or at any special meeting of the shareholders called
for the purpose of considering the same. Any contract, act or
transaction that shall be approved, ratified or confirmed by
resolution passed by a majority of the votes cast at any such
meeting (unless any different or additional requirement is
imposed by the Act or by the Company's articles or any other by-
law) shall be as valid and as binding upon the Company and upon
all the shareholders as though it had been approved, ratified
and/or confirmed by every shareholder of the Company.
ARTICLE SEVEN
OFFICERS
SECTION 7.01 APPOINTMENT OF OFFICERS. Subject to any unanimous
shareholder agreement, the board of directors, annually or as
often as may be required, shall appoint a president, and if they
see fit, a chairman of the board and one or more vice-presidents
of the Company and may also appoint a secretary, a treasurer and
one or more assistant-secretaries and/or one or more assistant-
treasurers. Any two or more of such offices may be held by the
same person. If the same person holds the offices of secretary
and treasurer,
<PAGE>
he may, but need not, be known as a secretary-
treasurer. The board of directors may from time to time
designate such other officers and appoint or authorize any one or
more of the foregoing officers to appoint such other officers,
employees and agents as it shall deem necessary who shall have
such authority and shall perform such functions and duties as may
from time to time be prescribed by resolution of the board of
directors or by the officer or officers appointing such other
officers, employees or agents.
SECTION 7.02 QUALIFICATIONS. Subject to any contrary
provisions herein, none of the officers need be a director or a
shareholder of the Company.
SECTION 7.03 REMUNERATION AND REMOVAL OF OFFICERS. Subject to
any unanimous shareholders' agreement, the remuneration of all
officers, employees and agents elected or appointed by the board
of directors may be determined from time to time by resolution of
the board of directors. The fact that any officer, employee or
agent is a director or shareholder of the Company shall not
disqualify him from receiving such remuneration as may be so
determined. The board of directors may by resolution remove any
officer, employee or agent at any time, with or without cause,
subject to his rights under any employment contract in force
between the Company and himself.
SECTION 7.04 DUTIES OF OFFICERS MAY BE DELEGATED. In case of
the absence or inability or refusal to act of any officer of the
Company or for any other reason that the board of directors may
deem sufficient, the board may delegate all or any of the powers
of such officer to any other officer or to any director for the
time being.
SECTION 7.05 CHAIRMAN OF THE BOARD. The board of directors may
from time to time appoint a chairman of the board who shall be a
director. The chairman shall be the chief executive officer of
the Company. The chairman presides, if present, at all meetings
of the board of directors and shareholders and shall have such
other powers and duties as may from time to time be assigned to
him by the board of directors.
SECTION 7.06 PRESIDENT. If no chairman has been appointed, the
president shall be the chief executive officer of the Company.
If a chairman has been appointed, the president shall be the
chief operating officer of the Company. He shall exercise
general supervision over the business and affairs of the Company.
In the absence of the chairman of the board (if any), the
president shall, if present, preside at all meetings of the board
of directors and shareholders; he shall sign such contracts,
documents or instruments in writing as require his signature and
shall have such other powers and shall perform such other duties
as may from time to time be assigned to him by resolution of the
board of directors or as are incident to his office. The
president shall be a director.
SECTION 7.07 VICE-PRESIDENT. The vice-president or, if more
than one, the vice-presidents in order of seniority, shall be
vested with all the powers and shall perform all the duties of
the president in the absence or inability or refusal to act of
the president, provided, however, that a vice-president who is
not a director shall not preside as chairman at any meeting of
directors or shareholders. The vice-president or, if more than
one, the vice-presidents, shall sign such contracts, documents or
instruments in writing as require his or their signatures and
shall also have such other powers and duties as may from time to
time be assigned to him or them by resolution of the board of
directors.
SECTION 7.08 SECRETARY. The secretary (if any), shall give or
cause to be given notices for all meetings of the board of
directors and shareholders when directed to do so. He shall have
charge of the records and of the corporate seal(s), (if any) and
may affix and attest such seal to any instrument whose execution
under seal shall have been duly authorized. He shall sign such
contracts, documents or instruments in writing as require his
signature and shall have such other powers and duties as may from
time to time be assigned to him by resolution of the board of
directors or as are incident to his office.
<PAGE>
SECTION 7.09 TREASURER. Subject to the provisions of any
resolution of the board of directors, the treasurer (if any)
shall have the care and custody of all the funds and securities
of the Company and shall deposit the same in the name of the
Company in such bank or banks or with such other depositary or
depositaries as the board of directors may by resolution direct.
He shall prepare, maintain and keep or cause to be kept adequate
books of accounts and accounting records. He shall sign such
contracts, documents or instruments in writing as require his
signature and shall have such other powers and duties as may from
time to time be assigned to him by resolution of the board of
directors or as are incident to his office. He may be required
to give such bonds for the faithful performance of his duties as
the board of directors in their uncontrolled discretion may
require and no director shall be liable for failure to require
any such bond or for the insufficiency of any such bond or for
any loss by reason of the failure of the Company to receive any
indemnity thereby provided.
SECTION 7.10 ASSISTANT-SECRETARY AND ASSISTANT-TREASURER. The
assistant-secretary or, if more than one, the assistant-
secretaries in order of seniority, and the assistant treasurer
or, if more than one, the assistant treasurers in order of
seniority, shall respectively perform all the duties of the
secretary and treasurer, respectively, in the absence or
inability to act of the secretary or treasurer as the case may
be. The assistant-secretary or assistant-secretaries, if more
than one, and the assistant-treasurer or assistant-treasurers, if
more than one, shall sign such contracts, documents or
instruments in writing as require his or their signatures
respectively and shall have such other powers and duties as may
from time to time be assigned to them by resolution of the board
of directors.
ARTICLE EIGHT
INDEMNIFICATION
SECTION 8.01 STATUTORY INDEMNIFICATION. The Company shall
indemnify each person who is entitled to indemnification under
Sections 2150, 2151 and 2154 of the Civil Code of Quebec (Q.S.
1991, c.64) and/or Sections 123.87 to 123.89 of the Act, as the
same may be amended or re-enacted from time to time, to the
fullest extent possible thereunder. In addition to the foregoing
and to the extent permitted by law, the Company shall also
indemnify each person who is entitled to indemnification in
accordance with Sections 8.02 to 8.07 of this Article
SECTION 8.02 INDEMNIFICATION IN THIRD PARTY ACTIONS. The
Company shall indemnify each 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, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Company) by reason of the fact that such person
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, including service with
respect to employee benefit plans, against all expense, liability
and loss (including attorneys' fees, judgments, fines, excise
taxes or penalties, and amounts paid or to be paid in settlement)
actually and reasonably incurred by such person in connection
with such action, suit or proceeding if he or she acted in good
faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, if he or she had
reasonable cause to believe his or her conduct was in conformity
with the law, except that no indemnification shall be made in
respect of any proceeding (or part thereof) initiated by such
person unless such proceeding (or part thereof) was authorized by
the board of directors of the Company. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the
Company, and with respect to any criminal action or proceeding,
did not have reasonable cause to believe that his or her conduct
was in conformity with the law.
SECTION 8.03 INDEMNIFICATION IN AN ACTION BY OR IN THE RIGHT OF
THE COMPANY. The Company shall indemnify each person who was or
is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact
that such person 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 co
rporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against
expenses (including attorneys' fees) actually and
<PAGE>
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if the person acted in good faith
and in a manner the person reasonably believed to be in or not
opposed to the best interests of the Company and except that no
indemnification shall be made in respect of (a) any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the
court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which or such court shall deem proper, or (b) any proceeding (or
part thereof) initiated by such person unless such proceeding (or
part thereof) was authorized by the board of directors of the
Company.
SECTION 8.04 INDEMNIFICATION AS OF RIGHT. To the extent that a
director, officer, employee or agent of the Company has been su
ccessful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Sections 8.02 and 8.03 of this
Article, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person
in connection therewith.
SECTION 8.05 DETERMINATION OF INDEMNIFICATION. Any
indemnification under Sections 8.02 and 8.03 of this Article
(unless ordered by a court) shall be made by the Company only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because the person has met the
applicable standard of conduct set forth in such Sections 8.02
and 8.03. Such determination shall be made (a) by the board of
directors (the board) by a majority vote of a quorum consisting
of directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion or (c) by the
stockholders.
SECTION 8.06 ADVANCE FOR EXPENSES. Expenses (including
attorneys' fees) incurred in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall
be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Company as authorized in
this Article.
SECTION 8.07 GENERAL PROVISIONS.
(a) All expenses (including attorneys' fees) incurred in
defending any civil, criminal, administrative or investigative
action, suit or proceeding which are advanced by the Company
under Section 8.05 of this Article shall be repaid (i) in case
the person receiving such advance is ultimately found, under
the procedure set forth in this Article, not to be entitled to
indemnification, or (ii) where indemnification is granted, to
the extent that the expenses so advanced by the Company exceed
the indemnification to which such person is entitled.
(b) The Company may indemnify each person, though he or she is
not or was not a director, officer, employee or agent of the
Company, who served at the request of the Company on a co
mmittee created by the board to consider and report to it in
respect of any matter. Any such indemnification may be made
under the preceding provisions of this Article and shall be
subject to the limitations thereof except that (as indicated)
any such committee member need not be nor have been a director,
officer, employee or agent of the Company.
(c) The provisions of this Article shall be applicable to
appeals. References to "serving at the request of the Company"
shall include without limitation any service as a director,
officer, employee or agent of the Company which imposes duties
on, or involves services by, such director, officer, employee
or agent with respect to an employee benefit plan, its partic
ipants or beneficiaries. A person who acted in good faith and
in a manner he or she reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to
the best interests of the Company."
<PAGE>
(d) If any section, subsection, paragraph, sentence, clause,
phrase or word in this Article shall be adjudicated invalid or
unenforceable, such adjudication shall not be deemed to
invalidate or otherwise affect any other section, subsection,
paragraph, sentence, clause, phrase or word of this Article.
(e) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled
under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in
their official capacities and as to action in another capacity
while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE NINE
MEETING OF SHAREHOLDERS
SECTION 9.01 ANNUAL MEETING. Subject to the Act, the annual
meeting of the shareholders of the Company shall be held on the
first Friday after April 15 in each year, or on such date in each
year as the board of directors may from time to time by
resolution determine, at the head office of the Company or,
subject to the provisions of the Act, at any other place as may
be specified in the notice convening such meeting, as the
directors may by resolution determine.
SECTION 9.02 SPECIAL MEETINGS. Other meetings of the
shareholders may be convened by order of the chairman of the
board, president or a vice-president or by the board of
directors, to be held at such time and place as may be specified
in a resolution of the board of directors.
Special meetings of shareholders shall also be convened
by the board of directors or, if there is not a quorum in office,
the director or directors which remain, upon receipt by the
secretary of the Company of a written requisition, signed by
shareholders holding in the aggregate not less than one-tenth
(1/10) of the subscribed shares of the capital of the Company,
stating the business to be transacted at the proposed meeting.
If such meeting is not called and held within twenty-one
(21) days of the date on which the requisition is delivered to
the head office of the Company, any shareholders, whether
signatories to the requisition or not, who hold not less than one-
tenth (1/10) in the value of the subscribed shares of the capital
of the Company, may themselves call the meeting. Notice of any
special meeting shall state the business which is to be
transacted thereat.
SECTION 9.03 PLACE OF MEETINGS. Meetings of shareholders of
the Company shall be held at the head office of the Company or at
such other place as may be specified in the notice convening such
meeting, which place must be located in the province of Quebec in
the case of annual meetings of shareholders and meetings of
shareholders at which any directors are elected. Notwithstanding
the foregoing, the annual shareholders' meeting and any meeting
of shareholders at which directors are elected may be held
outside the Province of Quebec if the Company has not made
distribution to the public of its securities and if its articles
so provide for it, or failing a provision in the articles to that
effect, if all the shareholders entitled to attend the meeting
consent. A shareholder who attends meetings held outside Quebec
is deemed to have so agreed except when he attends the meeting
for the express purpose of objecting to the transaction of any
business on the grounds that the meeting is not lawfully held.
SECTION 9.04 NOTICE. A printed, written or typewritten notice
stating the day, hour and place of meeting and the general nature
of the business to be transacted shall be sent not less than ten
(10) days before the meeting by messenger or by prepaid
registered or certified mail to the shareholders entitled to vote
at such meeting at their respective addresses, as shown in the
books of the Company. If the address of a
<PAGE>
shareholder is not
shown in the books of the Company, the notice may be delivered by
messenger or by prepaid registered or certified mail to the
address where, in the discretion of the sender, it is most likely
to be received by such shareholder. Notice of any meeting of
shareholders or any irregularity in any such meeting or in the
notice thereof may be waived by any shareholder or by the duly
appointed proxy of any shareholder by telegram, cable or telex or
any other writing addressed to the Company and any such waiver
may be validly given either before or after the meeting to which
such waiver relates.
The attendance of a shareholder at a meeting constitutes
waiver of notice thereof or of any irregularity in the notice
except where he attends for the express purpose of objecting to
the holding of the meeting on the grounds that the manner of
calling it was irregular.
SECTION 9.05 VOTING. Voting at a meeting of shareholders shall
be by show of hands except where a ballot is demanded by a
shareholder entitled to vote at the meeting. A shareholder may
demand a ballot either before or after any vote by show of hands.
Unless otherwise required by the Act, the articles of the Company
or these by-laws, questions arising at any meeting of
shareholders at which a quorum is present for the purposes of the
matter being considered shall be decided by a majority of votes
cast.
SECTION 9.06 IRREGULARITIES AND OMISSIONS. Any irregularities
affecting the notice of meeting or its expedition, the
involuntary omission to give any such notice or the fact that
such a notice has not been received by a shareholder, shall not
affect in any manner the validity of the meeting of shareholders.
Furthermore, the involuntary omission of the general nature of an
item of business which should have been mentioned in the notice
of the meeting as being on the agenda of the meeting does not
prevent such item of business from being considered and voted
upon at the meeting, unless a shareholder suffers prejudice or
his interests are injured as a result. A certificate signed by
the secretary or any other duly authorized officer of the Company
or any registrar or transfer agent for shares of the Company,
shall constitute conclusive evidence of the expedition of a
notice of meeting to the shareholders and the shareholders shall
be bound by such certificate.
SECTION 9.07 RIGHT TO VOTE. Subject to the articles of the
Company, at all shareholders' meetings, each shareholder entitled
to vote has as many votes as he holds shares in the Company, and
he may, subject to section 9.09 hereof, vote by proxy. However,
no shareholder in arrears in respect of any call may vote at a
shareholders' meeting.
SECTION 9.08 VOTES. Every question submitted to any meeting of
shareholders shall be decided in the first instance on a show of
hands, unless a poll is demanded. In case of an equality of
votes, the chairman of the meeting, both on a show of hands and
on a poll, shall not have a second or casting vote in addition to
the vote or votes to which he may be entitled as a shareholder.
At any meeting, unless a poll is demanded, a declaration by the
chairman of the meeting that a resolution has been carried
unanimously or by a particular majority or lost or not carried
unanimously or by a particular majority, along with an entry to
that effect in the minute books of the Company, will constitute
prima facia evidence of that fact without proof of the number or
proportion of votes recorded in favour of or against such
resolution.
The chairman of the board, if any, shall preside at every
meeting of shareholders of the Company. If there is no chairman
of the board or if he is absent, the president of the Company
shall preside as chairman and in his absence this right devolves
to the vice-president(s) designated for the purpose of the board
of directors. If at any meeting, none of the officers mentioned
above is present within the first fifteen (15) minutes following
the time fixed for the holding of the meeting, the shareholders
present shall select from their number a chairman of such
meeting.
If at any meeting a poll is demanded on the election of a
chairman or on the question of adjournment or termination, it
shall be taken forthwith without adjournment. If a poll is
demanded on any other question or as to the election of
directors, it shall be taken in such manner and either at once or
later at the meeting or after an adjournment as the chairman of
the meeting directs. The result of a poll shall be deemed to be
the resolution of the meeting at which the poll was demanded. A
demand for a poll may be withdrawn.
<PAGE>
Where a person holds shares as a personal representative,
such person or his proxy is the person entitled to vote at all
meetings of shareholders in respect of the shares so held by him.
Where two (2) or more persons hold the same share or
shares jointly, any one of such persons present at a meeting of
shareholders has the right, in the absence of the other or
others, to vote in respect of such share or shares, but if more
than one of such persons are present or represented by proxy and
vote, they shall vote together as one on the share or shares
jointly held by them.
SECTION 9.09 PROXIES. A shareholder, including a shareholder
that is a body corporate, who is entitled to vote at a meeting of
shareholders, may by means of a proxy appoint a proxyholder or
one or more alternate proxyholders, who are not required to be
shareholders, to attend and act at the meeting in the manner and
to the extent authorized by the proxy and with the authority
conferred by the proxy. A proxyholder holding the right to vote
on behalf of an absent shareholder, shall not have the right to
vote on show of hands.
An instrument appointing a proxyholder shall be in
writing and shall be executed by the shareholder or his attorney
authorized in writing or, if the shareholder is a body corporate,
either under its seal or by an officer or attorney thereof, duly
authorized. A proxy expires at the end of one year from the date
on which it is issued unless it expressly specifies some other
period.
Unless a relevant statute requires another form, an
instrument appointing a proxyholder may be in the following form
or any similar form:
"The undersigned shareholder of ..... hereby
appoints ..... of .... or failing him, of ..... as the
proxy of the undersigned to attend and act for and on
behalf of the undersigned at the meeting of the
shareholders of the said Company to be held on the ....
day of ...., 19.., and at any adjournment thereof to
the same extent and with the same power as if the
undersigned were personally present at the said meeting
or such adjournment thereof.
Dated the day of ...., 19...
Signature of shareholder
NOTE
This form of proxy must be signed by a shareholder or
his attorney authorized in writing or, if the
shareholder is a body corporate, either under its seal
or by an officer or attorney thereof duly authorized."
An instrument appointing a proxy carries with it the
revocation of any previous instrument appointing another proxy in
respect of such meeting. The instrument appointing a proxy may
be revoked at any time.
The directors may from time to time pass regulations
regarding the deposit of instruments appointing a proxy at some
place or places other than the place at which a meeting or
adjourned meeting of shareholders is to be held. They may as
well from time to time pass regulations regarding particulars of
such instruments to be telegraphed, cabled, telexed or sent in
writing to the Company or any agent of the Company for the
purpose of receiving such particulars. These regulations may
provide that any instrument appointing a proxyholder so lodged
may be voted upon as though the instruments themselves were
produced at the meeting or adjourned meeting in case of
adjournment, and votes given in accordance with such regulations
shall be valid and shall be counted. The chairman of any meeting
of shareholders may, subject to regulations, if any, made as
aforesaid, in his discretion accept telegraphic, telex, cable or
written communication as to the authority of anyone claiming to
vote on behalf of and to represent a shareholder notwithstanding
that no
<PAGE>
instrument of proxy conferring such authority has been
lodged with the Company. Any votes given in accordance with such
communications accepted by a chairman of the meeting shall be
counted.
SECTION 9.10 ADJOURNMENT. The chairman of the meeting may with
the consent of the meeting adjourn any meeting of shareholders
from time to time to a fixed time and place. If a meeting of
shareholders is adjourned by one or more adjournments for less
than thirty (30) days, it is not necessary to give notice of the
adjourned meeting other than by announcement at the earlier
meeting that is adjourned. If a meeting of shareholders is
adjourned by one or more adjournments for an aggregate of thirty
(30) days or more or, if after the adjournment a new record date
is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given as for an original meeting.
Any adjourned meeting shall be duly constituted if held
in accordance with the terms of the adjournment and a quorum is
present thereat. The persons who formed a quorum at the original
meeting are not required to form a quorum at the adjourned
meeting. If there is no quorum present at the adjourned meeting,
the original meeting shall be deemed to have terminated forthwith
after its adjournment. Any business may be brought before or
dealt with at any adjourned meeting which might have been brought
before or dealt with at the original meeting in accordance with
the notice calling same.
SECTION 9.11 QUORUM. Unless otherwise required by the Act, the
articles or any other by-law, one or more persons present and
holding or representing by proxy at least one (1) issued share of
the Company entitled to vote at the meeting shall constitute a
quorum of any meeting of shareholders for the choice of a
chairman of the meeting and for the adjournment of the meeting.
For all other purposes, one or more persons present and holding
or representing by proxy not less than fifty-one percent (51%) of
the shares entitled to vote at the meeting shall constitute a
quorum for such a meeting.
SECTION 9.12 RESOLUTION IN WRITING IN LIEU OF MEETING. A
resolution in writing signed by all the shareholders entitled to
vote on that resolution at a meeting of shareholders is as valid
as if it had been passed at a meeting of the shareholders.
A copy of every such resolution shall be kept with the
minutes of the meetings of shareholders.
SECTION 9.13 PARTICIPATION BY TELEPHONE. So long as the
Company has not made a distribution of its securities to the
public, the shareholders of the Company may participate and vote
at a shareholders' meeting by any means allowing all the
participants to communicate with each other.
<PAGE>
ARTICLE TEN
SHARES
SECTION 10.01 ALLOTMENT. The board of directors may from time
to time allot or grant options to purchase the whole or any part
of the authorized and unissued shares of the capital of the
Company, including any shares created by an amendment to the
articles increasing or otherwise varying the capital of the
Company, to such person or persons or class of persons as the
board of directors shall, by resolution, determine.
SECTION 10.02 CALLS. The board of directors may, by resolution,
make calls upon the shareholders in respect of any moneys unpaid
on the whole or any part of shares held or subscribed by them, at
the times and in the manner required or permitted by the Act, the
articles or the by-laws.
A call shall be deemed to have been made at the time when
the resolution of the board of directors authorizing such call
was passed. If a shareholder fails to pay any call due by him,
on or before the day appointed for the payment thereof, he shall
be liable to pay interest thereon at the rate of six percent (6%)
per annum on the sum due from the date appointed for the payment
of such call to the time of actual payment.
The directors may, if they think fit, receive from any
shareholder willing to advance the same, all or any part of the
amounts due on shares held by such shareholder, in addition to
amounts then actually owing by virtue of a call or calls on
shares held by him. The Company may pay interest at a rate not
exceeding eight percent (8%) per annum as may be agreed between
the directors and the shareholders who pay such sums in advance,
on the moneys so paid in advance, or so much thereof as, from
time to time exceeds the amount of the call then made upon the
shares in respect of which the advance payment was made.
However, if after a call is made and notice thereof is
given to the shareholder as prescribed by the resolution of the
directors authorizing such call, the call is not paid within such
time as the directors prescribe by the said resolution, the
directors may, in their discretion, by resolution to that effect
and duly recorded in the minutes, summarily declare forfeited
such share or shares for which the amount called has not been
paid and the same shall thereupon become the property of the
Company and may be disposed of as the directors may prescribe.
However, notwithstanding such forfeiture, the holder of such
shares at the time of the forfeiture shall continue to be liable
towards the then creditors of the Company, for the total amounts
unpaid on such shares at the time of the forfeiture, less the
amounts which are subsequently received by the Company in respect
thereof.
Instead of declaring any share or shares forfeited, the
directors may, if they see fit, enforce payment of all calls, and
interest thereon, by action in any court of competent
jurisdiction, the whole as prescribed by the Act.
SECTION 10.03 SHARE CERTIFICATES. Share certificates (and the
form of stock transfer power on the reverse side thereof) shall
be in such form and signed by such director(s) and/or officer(s)
as the board of directors may from time to time by resolution
determine.
SECTION 10.04 REGISTRAR AND TRANSFER AGENTS. The board of
directors may provide for the registration of securities issued
as well as the registration of transfers of securities of the
Company in one or several places. The board of directors may
from time to time by resolution appoint or remove one or more
registrars and/or branch registrars (which may but need not be
the same person) to keep the register of securities and/or
holders. The board of directors may also appoint one or more
transfer agents and/or branch transfer agents (which may but need
not be the same person) to keep the registers of securities
and/or transfers. All certificates issued after any such
appointment representing securities issued by the Company and in
respect of the class for which such appointment has been made
shall be countersigned by or on behalf of the said registrar
transfer agent of such securities as the case may be.
SECTION 10.05 TRANSFERS. All transfers of shares of the capital
of the Company and all pertinent information relating thereto
shall be registered in the register of transfers. Registration
of a transfer of shares
<PAGE>
of the capital of the Company in the
register of transfers held at the head office of the Company or
elsewhere as provided for in the by-laws, shall constitute a
complete and valid transfer. Subject to any provision to the
contrary contained in the Act, no transfer of shares of the
capital of the Company shall be valid for any purpose until entry
thereof is duly made in the register of transfers or in a branch
register of transfers. The directors may refuse to register any
transfer of shares belonging to any shareholder who is indebted
to the Company. A share may not be transferred without the
consent of the directors if its price has not been fully paid.
No share shall be transferable until all calls payable thereon up
to the time of transfer have been fully paid.
SECTION 10.06 SURRENDER OF SHARE CERTIFICATES. No transfer of a
share issued by the Company shall be recorded or registered
unless and until the certificate representing the share to be
transferred has been surrendered and cancelled or, if no
certificate has been issued by the Company in respect of such
share, unless and until a duly executed share transfer power in
respect thereof has been presented for registration.
SECTION 10.07 REPLACEMENT OF CERTIFICATES. Where a shareholder
declares under oath to the Company or the registrar, a branch
registrar, transfer agent or a branch transfer agent of the
Company, that the share certificate which he held has been
destroyed, stolen or lost, and describes the circumstances under
which this occurred, and provides, if so required, a bond against
any loss for which the Company may be held responsible with
regard to the issue of a new certificate, the president, or vice-
president, the secretary or the treasurer, may issue a new
certificate in replacement of the one which has been destroyed,
stolen or lost.
ARTICLE ELEVEN
DIVIDENDS
SECTION 11.01 Subject to the provisions of the Act, the board of
directors may from time to time by resolution declare dividends
payable to the shareholders according to their respective rights
and interests in the Company. Dividends may be paid in money or
property or by issuing fully paid shares of the Company.
The directors may deduct from the dividends payable to a
shareholder any amounts owed by the shareholder to the Company by
virtue of a call or calls or for any other reason.
As long as the Company pays interest on any amounts
received in advance on shares in addition to amounts due by
virtue of a call or calls, such amounts shall not be deemed paid
on the said shares.
Before declaring a dividend or a distribution of profits
of the Company, the directors may transfer such sums as they may
in their discretion decide to one or several reserve funds which
may be used at the discretion of the directors for all purposes
for which the profits of the Company may be legally applied.
ARTICLE TWELVE
RECORD DATE
SECTION 12.01 The board of directors is authorized to fix in
advance a date, not exceeding sixty (60) days preceding the date
of any meeting of shareholders, or the date for the payment of
any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock
shall go into effect, or a date in connection with obtaining such
consent, as a record date for the determination of the
shareholders entitled to notice of, and to vote at, any such
meeting and any adjournment thereof, or entitled to receive
payment of any such dividend or to any such allotment of rights,
or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, or to give such consent.
In such case such shareholders and only such shareholders as
shall be shareholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend or to
receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwith-
<PAGE>
standing any
transfer of any stock on the books of the corporation after any
such record date fixed as aforesaid. Any such record date fixed
in connection with a meeting of shareholders shall not be less
than ten (10) days before the date of such meeting.
ARTICLE THIRTEEN
NOTICES
SECTION 13.01 NOTICE TO JOINT SHAREHOLDERS. If two (2) or more
persons are registered as joint holders of any share, any notice
shall be addressed to all of such joint holders but notice to one
of such persons shall be sufficient notice to all of them.
SECTION 13.02 PERSONS BECOMING ENTITLED BY TRANSFER OR OPERATION
OF LAW. Every person who by operation of law, transfer or by any
other means whatsoever shall become entitled to any shares in the
capital of the Company shall be bound by every notice or other
document in respect of such shares which prior to his name and
address being entered on the records of the Company shall have
been duly given to the person or persons from whom he derives his
title to such shares.
SECTION 13.03 DECEASED SHAREHOLDERS. Any notice or other
document delivered or sent by post or left at the address of any
shareholder as the same appears in the records of the Company
shall, notwithstanding that such shareholder be then deceased and
whether or not the Company has notice of his decease, be deemed
to have been duly served in respect of the shares held by such
shareholder (whether held solely or with other persons) until
some other person is entered in his stead in the records of the
Company as the holder or one of the holders thereof. Such
service shall for all purposes be deemed a sufficient service of
such notice or other document on his heirs, executors or
administrators and all persons (if any) interested with him in
such shares.
SECTION 13.04 SIGNATURES TO NOTICES. The signature of any
director or officer of the Company to any notice may be written,
stamped, typewritten or printed or partly written, stamped,
typewritten or printed.
SECTION 13.05 COMPUTATION OF TIME. Where a given number of
days, notice or notice extending over any period is required to
be given under any provisions of the articles or by-laws of the
Company, the day of service or posting of the notice shall,
unless it is otherwise provided, be counted in such number of
days or other period and such notice shall be deemed to have been
given or sent on the day of service or posting.
A notice or other document served by post by the Company
on a shareholder shall be held to be served at the time when the
registered or certified letter containing it would be delivered
in the ordinary course of post, and to prove the fact and time of
service it shall be sufficient to prove that such letter was
properly addressed and put into the post office at the time when
it was put in and the time required for its delivery in the
ordinary course of post.
ARTICLE FOURTEEN
AUDITOR
SECTION 14.01 Subject to sections 123.98 to 123.100 of the Act,
an auditor shall be appointed each year by the shareholders at
their first meeting and at every subsequent annual meeting. The
remuneration of the auditor shall be set by the shareholders or
by the directors when this power has been delegated to them by
the shareholders. No director or officer of the Company may be
appointed as auditor. If the auditor ceases to exercise his
functions for any reason before the end of his term, the
directors may fill the vacancy and appoint a replacement auditor
who shall act as auditor until the annual meeting of shareholders
next following his appointment.
<PAGE>
ARTICLE FIFTEEN
CHEQUES, DRAFTS, NOTES
SECTION 15.01 All cheques, drafts or orders for the payment of
money and all notes, acceptances and bills of exchange shall be
signed by such officer or officers or other person or persons,
whether or not officers of the Company, and in such manner as the
board of directors may from time to time determine by resolution.
ARTICLE SIXTEEN
CUSTODY OF SECURITIES
SECTION 16.01 All securities (including warrants) owned by the
Company shall be lodged (in the name of the Company) with a
chartered bank or a trust company or in a safety deposit box or
with such other financial institution or in such other manner as
may be determined from time to time by the proper officers of the
Company.
ARTICLE SEVENTEEN
EXECUTION OF CONTRACTS
SECTION 17.01 Interested Directors or Officers. No contract or
transaction between the Company and one or more of its directors
or officers, or between the Company and any other corporation,
partnership, association or other organization in which one or
more of the directors or officers of the Company are directors or
officers, or have a financial interest, shall be void or voidable
solely for this reason, or solely because the director or officer
of the Company is present at or participates in the meeting of
the board of directors at which the contract or transaction is
authorized if:
(a) The material facts as to the relationship or interest of
such person and as to the contract or transaction are disclosed
or are known to the board of directors and the board of
directors in good faith authorizes the contract or transaction
by a vote sufficient for such purpose without counting the vote
of the interested director or directors of the Company;
provided, however, that common or interested directors may be
counted in determining the presence of a quorum at a meeting of
the board of directors; or
(b) The material facts as to the relationship or interest of
such person and as to the contract or transaction are disclosed
or are known to the shareholders of the Company entitled to
vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the shareholders of the
Company.
ARTICLE EIGHTEEN
DECLARATIONS
SECTION 18.01 The chairman of the board, if any, the president
of the Company, any vice-president, secretary and/or treasurer,
the assistant-secretaries and/or assistant-treasurers,
comptroller, accountant, chief clerk, or any other officer or
person authorized by an officer of the Company, is authorized and
empowered to appear and make answer for the Company to all writs,
orders and interrogatories upon articulated facts issued out of
any court, to declare for and on behalf of the Company any answer
to writs of attachment by way of garnishment in which the Company
is garnishee, to make all affidavits and sworn declarations in
connection therewith or in connection with any or all judicial
proceedings to which the Company is a party, to make demands of
abandonment or petitions for winding up or bankruptcy orders upon
any debtor of the Company, to attend and vote at all meetings of
creditors of any of the Company's debtors and grant proxies in
connection
<PAGE>
therewith, and to generally do all such things in
respect thereof as he deems to be in the best interests of the
Company.
ARTICLE NINETEEN
AMENDMENTS TO BY-LAWS
SECTION 19.01 The board of directors may from time to time
repeal, amend, or re-enact the by-laws of the Company, but every
such by-law, (except by-laws respecting agents, officers and
servants of the Company, and except such by-laws which require,
under the provisions of the Act, to be approved or sanctioned by
the shareholders before coming into effect) and every repeal,
amendment or re-enactment thereof unless in the meantime
confirmed at a meeting of the shareholders of the Company duly
called for that purpose, shall have force only until the next
annual meeting of shareholders of the Company, and in default of
confirmation thereat, shall, at and from that time only, cease to
be in force.
ARTICLE TWENTY
BORROWING OF MONEY BY THE COMPANY
SECTION 20.01 The directors of the Company may from time to
time:
(a) borrow money upon the credit of the Company;
(b) issue debentures or other securities of the Company,
and pledge or sell the same for such sums and at such
prices as may be deemed expedient;
(c) hypothecate the immovable and movable property or
otherwise affect the movable property of the Company.
The limitations and restrictions contained in this
section shall not apply to the borrowing of money by the Company
on bills of exchange or promissory notes made, drawn, accepted or
endorsed by or on behalf of the Company.
SECTION 20.02 DELEGATION. The board may from time to time
delegate to such one or more of the directors and officers of the
Company as may be designated by the board all or any of the
powers conferred on the board by section 20.01 or by the Act to
such extent and in such manner as the board shall determine at
the time of each such delegation.
The powers hereby confirmed by this paragraph and the
preceding paragraph shall be deemed to be in supplement to and
not in substitution for any other borrowing powers which may
otherwise be conferred on the directors or officers of the
Company independently of such paragraphs.
ARTICLE TWENTY-ONE
SPECIAL POWERS OF DIRECTORS
SECTION 21.01 The board of directors of the Company may from
time to time purchase, lease or otherwise acquire, alienate,
sell, exchange or otherwise dispose of stock, rights, warrants,
options, debentures, lands, buildings, and other property,
moveable and immoveable, and grant any right or privilege on the
property of the Company for such considerations and upon such
terms and conditions as they may deem advisable. Without
limiting the generality of the foregoing, by this article the
directors expressly authorize the Company to utilize, in whole or
in part, its funds for the purchase of shares of other companies.
<PAGE>
ENACTED ON MARCH 31, 1997.
CONFIRMED ON MARCH 31, 1997.
Paul Ratki
Paul Ratki
President
D. Michael Jones
D. Michael Jones
Vice President, General Counsel
and Assistant Secretary
<PAGE>
CANADIAN REYNOLDS METALS COMPANY, LTD./
SOCIETE CANADIENNE DE METAUX REYNOLDS, LTEE
BY-LAW 1997-1
Being a by-law authorizing the Company to file articles
of amendment with the Inspecteur general des institutions
financieres in order to obtain a certificate of amendment:
1. THAT the Company files the articles of amendment with the
Inspecteur general dees institutions financieres, in order to
obtain a certificate of amendment amending Appendix 1 referred to
in Item 5 of the Articles of Incorporation forming part of the
Certificate of Incorporation dated March 31, 1994 by deleting
Sections II. (d) and II. (e): and
2. THAT any one of the directors of the Company be and he is
hereby authorized to sign all documents and forms necessary or
incidental for the due carrying out of the foregoing.
Adopted: September 23, 1997
F:\MBH\FORMS\BY-LAW.DOC
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Reynolds
Metals Company Condensed Consolidated Balance Sheet (Unaudited) for September
30, 1997 and Consolidated Statement of Income (Unaudited) for the Nine Months
ended September 30, 1997 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1000000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 68
<SECURITIES> 0
<RECEIVABLES> 1027<F1>
<ALLOWANCES> 17
<INVENTORY> 816
<CURRENT-ASSETS> 1986
<PP&E> 6503
<DEPRECIATION> 3513
<TOTAL-ASSETS> 7356
<CURRENT-LIABILITIES> 1183
<BONDS> 1714
0
0
<COMMON> 1521
<OTHER-SE> 1215
<TOTAL-LIABILITY-AND-EQUITY> 7356
<SALES> 5114
<TOTAL-REVENUES> 5127
<CGS> 4233
<TOTAL-COSTS> 4233
<OTHER-EXPENSES> 246
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 116
<INCOME-PRETAX> 228
<INCOME-TAX> 75
<INCOME-CONTINUING> 153
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 153
<EPS-PRIMARY> 2.09
<EPS-DILUTED> 0.0
<FN>
<F1>This amount represents total receivables, since trade receivables are not
broken out separately at interim dates, in accordance with S-X 10-01(2).
</FN>
</TABLE>
