Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TANDY CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 75-1047710
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
100 Throckmorton Street, Suite 1800 76102
Fort Worth, Texas
(Address of Principal Executive Offices) (Zip Code)
TANDY CORPORATION 1997 INCENTIVE STOCK PLAN
(Full Title of the Plan)
M. C. Hill, Vice President Corporate Secretary and General Counsel
Tandy Corporation
100 Throckmorton Street, Suite 1900
Fort Worth, Texas 76102
(Name and Address of Agent for Service)
817-415-3924
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be offering price aggregate Registration
Registered Registered (1) per share (2) offering price Fee(2)
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
Common Stock,
$1 par value 5,500,000 $39.22 $253,652,295 $74,827.00
Preferred Share $46.35
Purchase Rights 5,500,000 -- -- --
- ------------------------ ---------------------- ---------------------- ----------------------- ----------------------
</TABLE>
(1) The number of shares registered has been computed on the basis of the
Issuer's estimate of the aggregate number of shares which will be needed for
grants and awards over the ten year life of the Tandy Corporation 1997 Incentive
Stock Plan. One Preferred share Purchase Right automatically trades with each
share of Common Stock and is evidenced by the certificate for the Common Stock.
(2) As of the date hereof, options to purchase 178,500 shares of Common Stock of
the Registratant have been granted pursuant to the Plan at an exercise price of
$39.22 per share. The registration fee for the foregoing shares is based upon
such exercise price. Purasuant to Rule 457(c), the registration fee for the
5,321,500 shares not currently subject to outstanding options under the Tandy
Corporation 1997 Incentive Stock Plan is based upon a price of $46.35 per share,
the average of the high and low sales price reported on the New York Stock
Exchange Composite Tranasactions System for the Registrant's Common Stock on
April 1, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed (File No. 1-5571) by Tandy
Corporation ("Tandy" or "Registrant") with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities and Exchange Act of
1934, as amended (the "1934 Act"), are incorporated by reference in this
Registration Statement and shall be deemed a part hereof: (a) the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1997; (b)
Tandy's Current Report on Form 8-K filed on February 2, 1998; and (c) the
description of Tandy's Common Stock, par value $1.00 per share ("Common Stock")
and Preferred Share Purchase Rights contained in the prospectus forming part of
Registration Statement No. 33-45180.
All documents subsequently filed by Tandy with the Commission pursuant
to Sections 13 (a), 13 (c), 14 or 15 (d) of the 1934 Act and prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in the Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein, or in
any other subsequently filed document, that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the Delaware General Corporation Law grants corporations
the power to indemnify officers and directors in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities Act
of 1933, as amended (the "Securities Act"). Article XIV of the Registrant's
Restated By-laws provides for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by Section 145 of the
Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law and the foregoing
by-law provision or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The Registrant carries directors' and officers' liability insurance
policies under which all of the directors and executive officers of Registrant
are insured against loss imposed upon them with respect to their legal liability
for breach of their duty to Registrant. Excluded from coverage under said policy
are fines and penalties imposed by law upon such directors and officers or other
matters which may be deemed uninsurable such as material acts of active and
deliberate dishonesty committed by the insureds with actual dishonest purpose
and intent. In addition, the Registrant has entered into indemnification
agreements with its directors and certain officers for indemnification to the
fullest extent permitted by applicable law.
In addition, the Tandy Corporation 1997 Incentive Stock Plan provides
that the Registrant will indemnify the members of the Organization and
Compensation Committee of its Board of Directors for all costs and expenses and,
to the extent permitted by applicable law, any liability incurred in connection
with defending against, responding to, negotiation of the settlement of or
otherwise dealing with any claim, cause of action or dispute of any kind arising
in connection with any actions in administering the Tandy Corporation 1997
Incentive Stock Plan or in authorizing or denying authorization to any
transaction thereunder.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
None Applicable
Item 8. EXHIBITS
Exhibit 3. Articles of Incorporation and By-laws.
Tandy Corporation Restated Certificate of Incorporation, as
amended through February 14, 1992, including Certificates of
Designation for Series A Preferred Stock and Series B Preferred
Stock.
Tandy Corporation Restated By-laws as amended and restated
through January 1, 1996.
Exhibit 4. Instruments defining the rights of security holders,
including indentures.
Tandy Corporation 1997 Incentive Stock Plan, as amended.
Exhibit 5. Opiniion re legality.
Opinion of Fried, Frank, Harris, Shriver & Jacobson, as counsel,
as to the legality of the securities being registered, including
consent.
Exhibit 23. Consents of experts and counsel.
Price Waterhouse LLP, Independent Accountants.
Fried, Frank, Harris, Shriver & Jacobson, Counsel (included in
Exhibit 5).
Item 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and/or
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the 1934 Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13 (a) or section 15(d) of the
1934 Act that is incorporated by reference in the Registration Statement shall
be deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) The undersigned Registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the 1934 Act; and, where interim
financial information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
(6) The undertaking regarding indemnification of officers and directors
is included as part of Item 6, which is incorporated into Item 9 by reference.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Worth, State of Texas, on the 2nd day
of April, 1998.
Tandy Corporation
By:/s/ John V. Roach
--------------------
John V. Roach,
Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 2nd day of April, 1998.
Signature Title
/s/ John V. Roach Chairman of the Board and Chief Executive Officer
John V. Roach
/s/ Dwain H. Hughes Senior Vice President and Chief Financial Officer
Dwain H. Hughes
/s/ James I. Cash, Jr. Director
James I. Cash, Jr.
/s/ Ronald E. Elmquist Director
Ronald E. Elmquist
/s/ Lewis F. Kornfeld, Jr. Director
Lewis F. Kornfeld, Jr.
/s/ Jack L. Messman Director
Jack L. Messman
/s/ William G. Morton, Jr. Director
William G. Morton, Jr.
/s/ Thomas G. Plaskett Director
Thomas G. Plaskett
/s/ Leonard H. Roberts Director
Leonard H. Roberts
/s/ Alfred J. Stein Director
Alfred J. Stein
/s/ William E. Tucker Director
William E. Tucker
/s/ John A. Wilson Director
John A. Wilson
INDEX TO EXHIBITS
Item.
No.
Exhibit 3 Articles of Incorporation and By-laws.
Tandy Corporation Restated Certificate of Incorporation, as
amended through February 14, 1992, including Certificates of
Designation for Series A Preferred Stock and Series B Preferred
Stock.
Tandy Corporation By-laws as amended and restated through January
1, 1996.
Exhibit 4 Instruments defining the rights of security holders.
Tandy Corporation 1997 Incentive Stock Plan, as amended.
Exhibit 5 Opinion re legality.
Opinion of Fried, Frank, Harris, Shriver & Jacobson, as counsel,
as to the legality of the securities being registered, including
consent.
Exhibit 23 Consents of experts and counsel.
Price Waterhouse LLP, Independent Accountants.
Fried, Frank, Harris, Shriver & Jacobson, Counsel (included in
Exhibit 5).
EXHIBIT 3
RESTATED CERTIFICATE OF INCORPORATION
OF
TANDY CORPORATION
TANDY CORPORATION, a corporation organized and existing under the laws
of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is TANDY CORPORATION. The date of filing
its original Certificate of Incorporation with the Secretary of State was
December 19, 1967.
2. This Restated Certificate of Incorporation restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
this corporation as heretofore amended or supplemented, and there is no
discrepancy between the provisions of the original Certificate of Incorporation,
as amended or supplemented, and the provisions of this Restated Certificate of
Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated to read as herein set forth in full:
CERTIFICATE OF INCORPORATION
OF
TANDY CORPORATION
FIRST: The name of the corporation (hereinafter referred to as the
"Corporation") is TANDY CORPORATION.
SECOND: The registered office of the Corporation in the State of Delaware
is located at No. 100 West 10th Street, in the City of Wilmington, County of New
Castle. The registered agent in charge thereof upon whom process against the
Corporation may be served, is The Corporation Trust Company, 100 West 10th
Street, Wilmington, Delaware.
THIRD: The nature of the business of the Corporation and the objects and
purposes to be transacted, promoted and carried on by it are as follows:
(a) To carry on a general business as manufacturers and merchants, and to
manufacture, produce, finish, treat, cure, tan or otherwise process, buy, sell,
import, export and generally trade and deal in and with any and all kinds of
materials, goods, wares and merchandise.
(b) To subscribe for or cause to be subscribed for, to purchase, invest in,
acquire, hold, own, sell, assign, transfer, mortgage, pledge, exchange,
distribute or otherwise dispose of the whole or any part of the shares of stock,
bonds, mortgages, debentures, notes, coupons, and other securities, obligations,
contracts, and evidences of indebtedness of any corporation, domestic or
foreign, and to issue in exchange therefor its shares of stock, bonds or other
obligations; to exercise in respect to any such shares of stock, bonds or other
securities, any and all rights, powers and privileges of individual owners or
holders, including the right to vote thereon and to aid in any manner permitted
by law any corporation or association of which any bonds or other securities or
evidences of indebtedness or stock are held by the Corporation, and to do any
acts or things designed to protect, preserve, improve or enhance the value of
any such stock, bonds or other securities or evidences of indebtedness, and to
organize or promote or facilitate the organization of subsidiary companies.
(c) To buy, lease or otherwise acquire the goodwill, franchises, rights,
and property, both real, personal and mixed, of any person, firm, association or
corporation, and to pay for the same in cash, property, stocks or bonds of the
Corporation or otherwise and to hold and use or in any manner dispose of the
whole or any part of the property so acquired; to conduct, carry on, operate,
manage, control, improve and develop the whole or any part of any business or
property so acquired, either in the name of such other person or persons, firm
or corporation, and to exercise all the powers necessary or convenient in and
about the conduct and management of such business.
(d) To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
(e) To do any and all things necessary, suitable, useful or proper in the
accomplishment of any of the purposes and powers hereinabove set forth, either
as principal or as agent, and in connection therewith to maintain offices, to
appoint agents, to make contracts, to borrow money, to acquire, hold, mortgage,
pledge, lease, sell, grant licenses with respect to or otherwise dispose of real
and personal property, and to do any and all other acts and things, all to the
same extent and as fully as natural persons might or could lawfully do in any
part of the world, but only within the limits permitted to corporations
organized under the General Corporation Law of Delaware.
The foregoing enumeration of purposes, powers and objects shall not be
deemed to limit or restrict in any manner the general powers of the Corporation
under the General Corporation Law of Delaware or the laws of any state,
territory, district or foreign country where the Corporation may be authorized
to do business.
FOURTH: The total number of shares which the Corporation shall have
authority to issue is two hundred fifty-one million (251,000,000) of which one
million (1,000,000) shares without par value shall be Preferred Stock and two
hundred fifty million (250,000,000) shares of the par value of one dollar
($1.00) per share shall be Common Stock. The Preferred Stock shall be issued
from time to time in one or more series with such distinctive serial
designations and (a) may have such voting powers, full or limited, or may be
without voting powers; (b) may be subject to redemption at such time or times
and at such prices; (c) may be entitled to receive dividends (which may be
cumulative or noncumulative) at such rate or rates, on such conditions, and at
such times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes of stock; (d) may have such rights upon
the dissolution of, or upon any distribution of the assets of, the Corporation;
(e) may be convertible into, or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or classes of
stock of the Corporation, at such price or prices or at such rates of exchange,
and with such adjustments; and (f) shall have such other relative,
participating, optional or other special rights, qualifications, limitations, or
restrictions thereof, all as shall hereinafter be stated and expressed in the
resolution or resolutions providing for the issue of such Preferred Stock from
time to time adopted by the Board of Directors pursuant to authority so to do
which is hereby granted to and vested in the board.
Each share of Common Stock shall entitle the holder thereof to one vote, in
person or by proxy, at any and all meetings of the stockholders of the
Corporation.
No stockholder, as such, shall have any preemptive right to subscribe for
or purchase any additional shares of stock or securities convertible into or
carrying warrants or options to acquire shares of stock of the Corporation.
Any and all right, title, interest and claim in or to any dividends
declared by the Corporation, whether in cash, stock or otherwise, which are
unclaimed by the stockholder entitled thereto for a period of six years after
the close of business on the payment date, shall be and be deemed to be
extinguished and abandoned; and such unclaimed dividends in the possession of
the Corporation, its transfer agents or other agents or depositaries, shall at
such time become the absolute property of the Corporation, free and clear of any
and all claims of any persons whatsoever.
FIFTH: The number of directors of the Corporation shall be such as from
time to time shall be fixed by or in the manner provided in the bylaws but shall
not be less than three.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(a) To make, alter, amend or repeal the bylaws of the Corporation; to
issue, sell, grant options to purchase and dispose of shares of the authorized
and previously unissued stock of any class of the Corporation and shares of its
outstanding stock of any class held in its treasury; to issue, sell and dispose
of the bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation, including bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation convertible into
stock of any class of the Corporation; to authorize and cause to be executed
mortgages and liens upon the real and personal property of the Corporation
including after-acquired property; to declare and pay dividends on the stock of
any class of the Corporation; to set apart out of any of the funds of the
Corporation available for dividends or otherwise a reserve or reserves for any
proper purpose and to abolish any such reserve in the manner in which it was
created.
(b) To designate one or more committees, by resolution passed by a majority
of the whole board, each committee to consist of two or more of the directors of
the Corporation, which, to the extent provided in the resolution or in the
bylaws of the Corporation, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it, and each committee shall have such name as may be stated in the
bylaws of the Corporation or as may be determined from time to time by
resolution adopted by the Board of Directors.
(c) When and as authorized by the affirmative vote of the holders of 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, to sell, lease or exchange all of the property and assets of the
Corporation, including its goodwill and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as the Board of Directors shall deem expedient and for the best
interests of the Corporation.
(d) To exercise all other corporate powers and to do all other acts and
things as may be exercised or done by the Corporation, subject, however, to the
provisions of the statutes of the State of Delaware and of this Certificate of
Incorporation and the bylaws of the Corporation.
SEVENTH: Elections of directors need not be by ballot unless the bylaws of
the Corporation shall so provide.
EIGHTH: The 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 the right reserved in this Article
EIGHTH.
4. This Restated Certificate of Incorporation was duly adopted by the Board
of Directors without a vote of the stockholders in accordance with Section 245
of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, said TANDY CORPORATION has caused this Certificate to
be signed by John V. Roach, its Chairman of the Board of Directors and attested
by H. C. Winn, its Secretary this 10th of December, 1982.
TANDY CORPORATION
BY: /s/ John V. Roach
Chairman of the
Board of Directors
ATTEST:
BY: /s/ H. C. Winn
Secretary
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
TANDY CORPORATION, a corporation organized and existing under and by virtue
of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Tandy Corporation on
August 15, 1986, resolutions were duly adopted setting forth a proposed
amendment to the Certificate of Incorporation of said Corporation, declaring
said amendment to be advisable and calling for consideration of said amendment
at the annual meeting of the stockholders of said Corporation on November 13,
1986. The resolution setting forth the proposed amendment is as follows:
RESOLVED: That the Certificate of Incorporation, as amended, be amended
further by renumbering present Article EIGHTH as Article NINTH, and adding a new
Article EIGHTH thereto, reading in its entirety as follows:
"EIGHTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of Delaware, as the same may
be amended and supplemented. No amendment to or repeal of this Article EIGHTH
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."
SECOND: That thereafter the annual meeting of the stockholders of said
Corporation was held, upon notice in accordance with Section 222 of the General
Corporation Law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Tandy Corporation has caused this Certificate to
be signed by John V. Roach, its President, and attested by H. C. Winn, its
Secretary, this 19th day of November, 1986.
TANDY CORPORATION
BY: /s/John V. Roach
President
ATTEST:
BY: /s/ H. C. Winn
Secretary
Certificate of Designation
of
Certificate of Incorporation
of
Tandy Corporation
Pursuant to Section 151
of the General Corporation Law of the
State of Delaware
It is hereby certified that:
1. The name of the corporation is Tandy Corporation (hereinafter called the
"Corporation");
2. The Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), is hereby amended so that the designation and number of shares
of the class and series acted upon in the following resolution, and the relative
rights, preferences and limitations of such class and series, are as stated in
such resolution;
3. No shares of the Series A Junior Participating Preferred Stock (as
defined below) have been issued; and
4. The following resolution was duly adopted by the Board of Directors of
the Corporation as required by Section 151 of the General Corporation Law of the
State of Delaware at a meeting duly called and held on June 22, 1990:
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of this Corporation in accordance with the provisions of the
Certificate of Incorporation, with respect to the Series of Preferred Stock, no
par value, of the Corporation authorized by the Board of Directors on August 13,
1986, designated the Series A Junior Participating Preferred Stock, the
resolutions of the Board of Directors are hereby amended such that the
designation and amount of the Series A Junior Participating Preferred Stock and
the powers, preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Designation, Par Value and Amount. The shares of such a series
shall be designated as "Series A Junior Participating Preferred Stock"
(hereinafter referred to as "Series A Preferred Stock"), the shares of such
series shall be with no par value, and the number of shares constituting such
series shall be 100,000; provided, however, that, if more than a total of
100,000 shares of Series A Preferred Stock shall be issuable upon the exercise
of Rights (the "Rights") issued pursuant to the Amended and Restated Rights
Agreement, dated as of June 22, 1990, between the Corporation and The First
National Bank of Boston, as Rights Agent (as amended from time to time) (the
"Rights Agreement"), the Board of Directors of the Corporation, pursuant to
Section 151 of the General Corporation Law of the State of Delaware, shall
direct by resolution or resolutions that a certificate be properly executed,
acknowledged and filed providing for the total number of shares of Series A
Preferred Stock authorized to be issued to be increased (to the extent that the
Certificate of Incorporation then permits) to the largest number of whole shares
(rounded up to the nearest whole number) issuable upon exercise of the Rights.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of assets legally available for the purpose,
quarterly dividends payable in cash on the fifteenth day of March, June,
September and December in each year (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 Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $50 or (b) 1000 times the aggregate per share amount
of all cash dividends, and 1000 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, par value $1.00 per share, of the Corporation
(the "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 Preferred Stock.
(B) The Corporation shall declare a dividend or distribution on the Series
A 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, in the event 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 $50 per share on the Series A 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 Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares 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 unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A 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 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 Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the date
fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Each share of Series A Preferred Stock shall entitle the holder thereof
to 1000 votes on all matters submitted to a vote of the stockholders of the
Corporation.
(B) Except as otherwise provided herein or by law, the holders of shares of
Series A 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) Except as set forth herein (or as otherwise required by applicable
law), holders of Series A Preferred Stock shall have no general or special
voting rights and their consent shall not be required for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A 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 Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, 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 Preferred Stock, except dividends
paid ratably on the Series A 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;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock;
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the Series
A 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 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 Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and canceled 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, in the Certificate
of Incorporation, in any other Certificate of Amendment creating a series of
Preferred Stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) With respect to any liquidation, dissolution or winding up (voluntary
or otherwise) 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 Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred Stock shall have received
$1000 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 Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
"Capital Adjustment") equal to the quotient obtained by dividing (i) the Series
A Liquidation Preference by (ii) 1000 (such number in clause (ii), the
"Adjustment Number"). Following the payment of the full amount of the Series A
Liquidation Preference and the Capital Adjustment in respect of all outstanding
shares of Series A Preferred Stock and Common Stock, respectively, holders of
Series A Preferred Stock and holders 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) In the event, however, that 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 Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of Series A Preferred Stock and the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Capital Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
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 Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to 1000 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.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
Section 9. Ranking. The Series A 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 terms of any such series shall
provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the Corporation
shall not be further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of
two-thirds or more of the outstanding shares of Series A Preferred Stock, voting
together as a single class.
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf
of the Corporation by its Chairman of the Board, Chief Executive Officer and
President and attested by its Senior Vice President and Secretary this 22nd day
of June, 1990.
/s/ John V. Roach
- ---------------------------
John V. Roach
Chairman of the Board
Chief Executive Officer and President
Attest:
/s/ Herschel C. Winn
- -------------------------
Herschel C. Winn
Senior Vice President
and Secretary
CERTIFICATE OF DESIGNATIONS
OF
SERIES B TESOP CONVERTIBLE PREFERRED STOCK
of
TANDY CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
We, John V. Roach, Chairman, Chief Executive Officer and President and
Herschel C. Winn, Senior Vice President and Secretary, respectively, of Tandy
Corporation (the "Company"), a corporation organized and existing under the laws
of the State of Delaware, in accordance with the provisions of Section 151 of
the Delaware General Corporation Law, DO HEREBY CERTIFY that, pursuant to the
authority conferred upon the Board of Directors by the Restated Certificate of
Incorporation of the Company, as amended, the Board of Directors authorized the
series of Preferred Stock hereinafter provided for and established the voting
powers thereof and adopted the following resolution creating a series of one
hundred thousand (100,000) shares of Preferred Stock, without par value,
designated as Series B TESOP Convertible Preferred Stock:
RESOLVED: That pursuant to the authority vested in the Board of Directors
of the Company in accordance with the provisions of its Restated Certificate of
Incorporation, as amended, a series of Preferred Stock of the Company be, and it
hereby is, created, and that the designation and amount thereof and the voting
powers, preferences and relative, participating, optional or other special
rights of the shares of such series, and the qualifications, limitations or
restrictions thereof are as follows:
Section 1. Designation and Amount; Special Purpose Restricted Transfer
Issue.
(A) The shares of this series of Preferred Stock shall be designated as
Series B TESOP Convertible Preferred Stock ("Series B Preferred Stock") and the
number of shares constituting such series shall be one hundred thousand
(100,000) shares.
(B) Shares of Series B Preferred Stock shall be issued only to a trustee
acting on behalf of an employee stock ownership plan or other employee benefit
plan of the Company. In the event of any transfer of shares of Series B
Preferred Stock to any person other than the issuance of Series B Preferred
Stock to any such plan trustee, the shares of Series B Preferred Stock so
transferred, upon such transfer and without any further action by the Company or
the holder, shall be automatically converted into shares of Common Stock (as
defined herein) on the terms otherwise provided for the conversion of shares of
Series B Preferred Stock into shares of Common Stock pursuant to Section 5
hereof and no such transferee shall have any of the voting powers, preferences
and relative, participating, optional or other special rights ascribed to shares
of Series B Preferred Stock hereunder but, rather, only the powers and rights
pertaining to the Common Stock into which such shares of Series B Preferred
Stock shall be so converted; provided, however, that the pledge of Series B
Preferred stock by an employee stock ownership plan or other employee benefit
plan of the Company shall not constitute a transfer for the purposes of this
Section 1. Certificates representing shares of Series B Preferred Stock shall be
legended to reflect the ongoing provisions. Notwithstanding the foregoing
provisions of this paragraph (B) of Section 1, shares of Series B Preferred
Stock (i) may be converted into shares of Common Stock as provided by Section 5
hereof and the shared of Common Stock issued upon such conversion may be
transferred by the holder thereof as permitted by law and (ii) shall be
redeemable by the Company upon the terms and conditions provided by Sections 6,
7 and 8 hereof.
Section 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series B Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, cash dividends ("Preferred Dividends") in an amount per
share equal to $75.00 per share per annum, payable semi-annually in arrears,
one-half on June 30 and one-half on December 31 of each year (each a "Dividend
Payment Date") commencing on December 31, 1990, to holders of record at the
start of business on such Dividend Payment Date; provided, however, that if as
of a given Dividend Payment Date $37.50 is less than an amount (the "Common
Stock Equivalent Dividend") equal to (i) the aggregate amount of all cash
dividends (excluding an amount equal to the Fair Market Value of an
Extraordinary Distribution made during such period as defined in paragraph (G)
of Section 9) declared per share of Common Stock since the immediately preceding
Dividend Payment Date multiplied by (ii) the number of shares of Common Stock
into which such shares of Series B Preferred Stock was convertible at the time
each such dividend was declared (including, without limitation, any and all
adjustments as provided in Section 9 hereof), then the Preferred Dividend
payable for such period shall equal the Common Stock Equivalent Dividend amount.
In the event that any Dividend Payment Date shall fall on any day other than a
"business day" (as hereinafter defined), the dividend payment due on such
Dividend Payment Date shall be paid on the business day immediately preceding
such Dividend Payment Date. Preferred Dividends shall begin to accrue on
outstanding shares of Series B Preferred Stock from the date of issuance of such
shares of Series B Preferred Stock. Preferred Dividends shall accrue on a daily
basis whether or not the Company shall have earnings or surplus at the time.
Preferred Dividends accrued after the date of issuance thereof on the shares of
Series B Preferred Stock for any period less than a full semi-annual period
between Dividend Payment Dates shall be computed on the basis of a 360-day year
of twelve 30-day months. A proportional dividend shall accrue for the period
from the date of issuance until December 31, 1990 and shall be calculated based
on the fixed Preferred Dividend amount. Accrued but unpaid Preferred Dividends
shall cumulate as of the Dividend Payment Date on which they first become
payable, but no interest shall accrue on accumulated but unpaid Preferred
Dividends.
(B) So long as any Series B Preferred Stock shall be outstanding, no
dividend shall be declared or paid or set apart for payment on any other series
of stock ranking on a parity with the Series B Preferred Stock as to dividends,
unless there shall also be or have been declared and paid or set apart for
payment on the Series B Preferred Stock, like dividends for all dividend payment
periods of the Series B Preferred Stock ending on or before the dividend payment
date of such parity stock, ratably in proportion to the respective amounts of
dividends accumulated and unpaid through such dividend payment period on the
Series B Preferred Stock and accumulated and unpaid or payable on such parity
stock through the dividend payment period on such parity stock next preceding
such dividend payment date. In the event that full cumulative dividends on the
Series B Preferred Stock have not been declared and paid or set apart for
payment when due, the Company shall not declare or pay or set apart for payment
any dividends or make any other distributions on, or make any payment on account
of the purchase, redemption or other retirement of, any other class of stock or
series thereof of the Company ranking, as to dividends or as to distributions in
the event of a liquidation, dissolution or winding-up of the Company, junior to
the Series B Preferred Stock until full cumulative dividends on the Series B
Preferred Stock shall have been paid or declared and set aside for payment;
provided, however, that the foregoing shall not apply to (i) any dividend
payable solely in any shares of any stock ranking, as to dividends and as to
distributions in the event of a liquidation, dissolution or winding-up of the
Company, junior to the Series B Preferred stock, or (ii) the acquisition of
shares of any stock ranking, as to dividends or as to distributions in the event
of a liquidation, dissolution or winding-up of the Company, junior to the Series
B Preferred Stock in exchange solely for shares of any other stock ranking as to
dividends and as to distributions in the event of a liquidation, dissolution, or
winding-up of the Company, junior to the Series B Preferred stock.
Section 3. Voting Rights. The holders of shares of Series B Preferred Stock
shall have the following voting rights:
(A) The holders of Series B Preferred Stock shall be entitled to vote on
all matters submitted to a vote of the holders of Common Stock of the Company,
voting together with the holders of Common Stock as one class. Each share of the
Series B Preferred Stock shall be entitled to the number of votes equal to the
number of shares of Common Stock into which such shares of Series B Preferred
Stock could be converted on the record date for determining the stockholders
entitled to vote, rounded to the nearest one-tenth of a vote; it being
understood that whenever the "Conversion Price" (as defined in Section 5 (A)
hereof) is adjusted as provided in Section 9 hereof, the voting rights of the
Series B Preferred Stock shall also be similarly adjusted.
(B) Except as otherwise required by law or set forth herein, holders of
Series B 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 the taking of any corporate
action.
(C) The Restated Certificate of Incorporation, as amended, of the Company
or this Resolution (including, without limitation, any such alteration,
amendment or repeal effected by any merger or consolidation in which the Company
is a surviving or resulting corporation) shall not be amended in any manner that
would materially alter or change the powers, preferences or special rights of
the Series B Preferred Stock so as to affect the holders thereof adversely
without the affirmative vote of the holders of two-thirds of the outstanding
shares of Series B Preferred Stock, voting together as a single class.
Section 4. Liquidation, Dissolution or Winding Up.
(A) Upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the holders of Series B Preferred Stock shall be entitled to
receive out of the assets of the Company which remain after satisfaction in full
of all valid claims of creditors of the Company and which are available for
payment to stockholders and subject to the rights of the holders of any stock of
the Company ranking senior to or on a parity with the Series B Preferred Stock
in respect of distributions upon liquidation, dissolution or winding up of the
Company, before any amount shall be paid or distributed among the holders of
Common Stock or any other shares ranking junior to the Series B Preferred Stock
in respect of distributions upon liquidation, dissolution or winding up of the
Company, liquidating distributions in the amount of $1,000 per share (the
"Liquidation Price"), plus an amount equal to all accrued and unpaid dividends
thereon to the date fixed for distribution, and no more. If, upon any
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Series B Preferred Stock and any other parity stock ranking as to
any such distribution on a parity with the Series B Preferred Stock are not paid
in full, the holders of the Series B Preferred Stock and such other stock shall
share ratably in any distribution of assets in proportion to the full respective
preferential amounts to which they are entitled. After payment of the full
amounts to which they are entitled as provided by the foregoing provisions of
this Section 4(A), the holders of shares of Series B Preferred Stock shall not
be entitled to any further right or claim to any of the remaining assets of the
Company.
(B) Neither the merger or consolidation of the Company with or into any
other corporation, nor the merger or consolidation of any other corporation with
or into the Company, nor the sale, transfer or lease of all or any portion of
the assets of the Company, shall be deemed to be a dissolution, liquidation or
winding up of the affairs of the Company for purposes of this Section 4, but the
holders of Series B Preferred Stock shall nevertheless be entitled in the event
of any such merger or consolidation to the rights provided by Section 8 hereof.
(C) Written notice of any voluntary or involuntary liquidation, dissolution
or winding up of the Company, stating the payment date or dates when, and the
place or places where, the amounts distributable to holders of Series B
Preferred Stock in such circumstances shall be payable, shall be given by
first-class mail, postage prepaid, mailed not less than twenty (20) days prior
to any payment date stated therein, to the holders of Series B Preferred Stock,
at the address shown on the books of the Company or any transfer agent for the
Series B Preferred Stock.
Section 5. Conversion into Common Stock.
(A) A holder of shares of Series B Preferred Stock shall be entitled, at
any time (but not after the close of business on a date fixed for redemption of
such shares pursuant to Sections 6, 7 and 8 hereof), to cause any or all of such
shares to be converted into shares of Common Stock, initially at a conversion
rate equal to the ratio of (i) $1,000 to (ii) the amount which (A) initially
shall be equal to 125% of the Fair Market Value (as defined herein) of the
Common Stock on the date of issuance of the Series B Preferred Stock, and (B)
shall be adjusted as hereinafter provided (such amount, as it may be so adjusted
from time to time, is hereinafter sometimes referred to as the "Conversion
Price").
(B) Any holder of shares of Series B Preferred Stock desiring to convert
such shares into shares of Common Stock shall surrender the certificate or
certificates representing the shares of Series B Preferred Stock being
converted, duly assigned or endorsed for transfer to the Company (or accompanied
by duly executed stock powers relating thereto), at the principal executive
office of the Company or the offices of the transfer agent for the Series B
Preferred Stock or such office or offices in the continental United States of an
agent for conversion as may from time to time be designated by notice to the
holders of the Series B Preferred Stock by the Company or the transfer agent for
the Series B Preferred Stock, accompanied by written notice of conversion. Such
notice of conversion shall specify (i) the number of shares of Series B
Preferred Stock to be converted and the name or names in which such holder
wishes the certificate or certificates for Common Stock and for any shares of
Series B Preferred Stock not to be so converted to be issued, and (ii) the
address to which such holder wishes delivery to be made of such new certificates
to be issued upon such conversion.
(C) Upon surrender of a certificate representing a share or shares of
Series B Preferred Stock for conversion, the Company shall issue and send by
hand delivery (with receipt to be acknowledged) or by first class mail, postage
prepaid, to the holder thereof or to such holder's designee, at the address
designated by such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled upon conversion.
In the event that there shall have been surrendered a certificate or
certificates representing shares of Series B Preferred Stock, only part of which
are to be converted, the Company shall issue and deliver to such holder or such
holder's designee a new certificate or certificates representing the number of
shares of Series B Preferred Stock which shall not have been converted.
(D) The issuance by the Company of shares of Common Stock upon a conversion
of shares of Series B Preferred Stock into shares of Common Stock made at the
option of the holder thereof shall be effective as of the earlier of (i) the
delivery to such holder or such holder's designee of the certificates
representing the shares of Common Stock issued upon conversion thereof or (ii)
the commencement of business on the second business day after the surrender of
the certificate or certificates for the shares of Series B Preferred Stock to be
converted, duly assigned or endorsed for transfer to the Company (or accompanied
by duly executed stock powers relating thereto) as provided by this Resolution.
On and after the effective day of conversion, the person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock, but no
allowance or adjustment shall be made in respect of dividends payable to holders
of Common Stock in respect of any period prior to such effective date. The
Company shall not be obligated to pay any dividends which shall have been
declared and shall be payable to holders of shares of Series B Preferred Stock
on a Dividend Payment Date if such Dividend Payment Date for such dividend shall
coincide with or be on or subsequent to the effective date of conversion of such
shares.
(E) The Company shall not be obligated to deliver to holders of Series B
Preferred Stock any fractional share or shares of Common Stock issuable upon any
conversion of such shares of Series B Preferred Stock, but in lieu thereof may
make a cash payment in respect thereof in any manner permitted by law.
(F) The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, or Common Stock held as Treasury Stock,
solely for issuance upon the conversion of shares of Series B Preferred Stock as
herein provided, free from any preemptive rights, such number of shares of
Common Stock as shall from time to time be issuable upon the conversion of all
the shares of Series B Preferred Stock then outstanding. Nothing contained
herein shall preclude the Company from issuing shares of Common Stock held in
its treasury upon the conversion of shares of Series B Preferred Stock into
Common Stock pursuant to the terms hereof. The Company shall prepare and shall
use its best efforts to obtain and keep in force such governmental or regulatory
permits or other authorizations as may be required by law, and shall comply with
all requirements as to registration or qualification of the Common Stock, in
order to enable the Company lawfully to issue and deliver to each holder of
record of Series B Preferred Stock such number of shares of its Common Stock as
shall form time to time be sufficient to effect the conversion of all shares of
Series B Preferred Stock then outstanding and convertible into shares of Common
Stock.
(G) The Company has entered into an Amended Restated Shareholder Rights
Agreement dated as of June 22, 1990 (the "Rights Agreement") governing the
issuance to holders of Common Stock of rights to purchase capital stock or other
securities of the Company. Whenever the Company shall issue shares of Common
Stock as contemplated by this Section 5, the Company shall comply with the terms
of the Rights Agreement or any successor rights agreement and applicable
resolutions of the Board of Directors relating to rights dividends with respect
to the issuance of rights together with the issuance of such shares of Common
Stock.
Section 6. Redemption At the Option of the Company.
(A) The Series B Preferred Stock shall be redeemable, in whole or in part,
at the option of the Company at any time after July 1, 1994, or on or before
July 1, 1994 if permitted by paragraph (D) of this Section 6, at the following
redemption prices per share, expressed as a percentage of the Liquidation Price
per share:
<TABLE>
<CAPTION>
During the Twelve-
Month Period Price Per
Beginning July 1, Share
<S> <C>
1990 107.50%
1991 106.75%
1992 106.00%
1993 105.25%
1994 104.50%
1995 103.75%
1996 103.00%
1997 102.25%
1998 101.50%
1999 100.75%
2000 100.00%
</TABLE>
and thereafter at $1,000 per share, plus, in each case, an amount equal to all
accrued and unpaid dividends thereon to the date fixed for redemption. Payment
of the redemption price shall be made by the Company in cash or shares of Common
Stock, or a combination thereof, as permitted by paragraph (E) of this Section
6. From and after the date fixed for redemption, dividends on shares of Series B
Preferred Stock called for redemption will cease to accrue, such shares will no
longer be deemed to be outstanding and all rights in respect of such shares of
the Company shall cease, except the right to receive the redemption price. If
less than all of the outstanding shares of Series B Preferred Stock are to be
redeemed, the Company shall either redeem a portion of the shares of each holder
determined pro rata based on the number of shares held by each holder or shall
select the shares to be redeemed, by lot, as may be determined by the Board of
Directors of the Company.
(B) Unless otherwise required by law, notice of redemption for any
redemption made pursuant to this Section 6 will b sent to the holders of Series
B Preferred Stock at the address shown on the books of the Company or any
transfer agent for the Series B Preferred Stock by first class mail, postage
prepaid, mailed not less than twenty (20) days nor more than sixty (60) days
prior to the redemption date. Each such notice shall state: (i) the redemption
date; (ii) the total number of shares of the Series B Preferred Stock to be
redeemed and, if fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such shares
are to be surrendered for payment of the redemption price; (v) that dividends on
the shares to be redeemed will cease to accrue on such redemption date; and (vi)
the conversion rights of the shares to be redeemed, the period within which
conversion rights may be exercised (which shall be no less than twenty (20)
days), and the Conversion Price and number of shares of Common Stock issuable
upon conversion of a share of Series B Preferred Stock on the date such notice
is sent. The foregoing notice provisions may be amended, if necessary, so as to
comply with the optional redemption provisions for preferred stock as
"qualifying employer securities" or "employer securities" within the meaning of
Sections 4975(e)(8) and 409(1) of the Internal Revenue Code of 1986, as amended
(the "Code"), or under any successor provision thereof or as "qualifying
employer securities" under Section 407(d)(5) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or under any successor provision
thereof. Upon surrender of the certificates for any shares so called for
redemption and not previously converted (properly endorsed or assigned for
transfer, if the Board of Directors of the Company shall so require and the
notice shall so state), such shares shall be redeemed by the Company at the date
fixed for redemption and at the redemption price set forth in this Section 6.
(C) (i) In the event of a change in the federal tax laws of the United
States of America (or any regulations or rulings promulgated thereunder), or any
change in the application, enforcement or interpretation in respect of such
laws, regulations or rulings, including any of the foregoing taken by a court of
competent jurisdiction, which has the effect of precluding the Company from
claiming any of the tax deductions for dividends paid on the Series B Preferred
Stock (other than a change treating the dividends as a preference item for
purposes of determining alternative minimum tax) when such dividends are used as
provided under Section 404(k)(2) of the Code and in effect on the date shares of
Series B Preferred Stock are initially issued, or (ii) upon a determination by
the Internal Revenue Service that the Company's employee stock ownership plan
(the "Plan"), as amended, or any successor plan is not qualified under Sections
401(a), 401(k) and 4975(e)(7) of the Code, the Company may, in its sole
discretion and notwithstanding anything to the contrary in paragraph (A) of this
Section 6, elect to redeem such shares for the amount payable in respect of the
shares upon liquidation of the Company pursuant to Section 4 hereof. Notice of
such redemption shall be provided in accordance with the procedures set forth in
paragraph (B) of this Section 6, provided, however, that notice of redemption
for any redemption made pursuant to clause (i) of this paragraph 6(C) shall be
mailed not more than ninety (90) days after the later to occur of (i) the
effective date, or (ii) the date of enactment, of the change permitting such
redemption.
(D) If the Company terminates or partially terminates the Plan, then,
notwithstanding anything to the contrary in paragraph (A) of this Section 6, the
Company may elect to redeem and all of the shares of Series B Preferred Stock at
any time prior to July 1, 1994, on the terms and conditions set forth in
paragraphs (A) and (B) of this Section 6.
(E) The Company shall make payment of the redemption price required upon
redemption of shares of Series B Preferred Stock in cash, or if the Company so
elects, in shares of Common Stock, or in a combination of such shares and cash,
any such shares to be valued for such purposes at their Fair Market Value (as
defined in paragraph (G) of Section 9 hereof). Notwithstanding anything herein
to the contrary (including Section 7 hereof), in the event that the company
elects, by a resolution of its Board of Directors, to make payment of all future
redemption prices solely in cash or solely in shares of Common Stock of the
Company and notifies the holders of Series B Preferred Stock of such election,
all such payments thereafter shall be made in compliance with such election and
such election shall be irrevocable.
Section 7. Other Redemption Rights.
For consideration as provided in paragraph (E) of Section 6, shares of
Series B Preferred Stock shall be redeemed by the Company at a redemption price
equal to the greater of the Fair Market Value (as hereinafter defined) or the
Liquidation Price of the Series B Preferred Stock plus an amount equal to all
accrued and unpaid dividends thereon to the date fixed for redemption, at the
option of the holder, at any time and from time to time upon notice to the
Company given not less than five (5) business days prior to the date fixed by
the holder in such notice for such redemption, when and to the extent necessary
(i) for such holder to provide for distributions required to be made to
participants under, or to satisfy an investment election provided to
participants in accordance with, the Plan, or any successor Plan, (ii) for such
holder to make payment of principal, interest or premium due and payable
(whether as scheduled or upon acceleration) on indebtedness of the trust under
such Plan or any indebtedness incurred by the holder or the benefit of the Plan,
or (iii) when and if it shall be established to the satisfaction of the holder
that the Plan has not initially been determined by the Internal Revenue Service
to be qualified as an employee stock ownership plan within the meaning of
Sections 401(a) or 4975(e)(7) of the Code, respectively.
Section 8. Consolidation, Merger, etc.
(A) In the event that the Company shall consummate any consolidation,
merger or similar business transaction, however named, pursuant to which the
outstanding shares of Common Stock are by operation of law exchanged solely for
or changed, reclassified or converted solely into stock of any successor or
resulting company (including the Company) that constitutes "employer securities"
with respect to a holder of Series B Preferred Stock (within the meaning of
Section 409 (1) of the Code) and "qualifying employer securities" (within the
meaning of Section 407(d)(5) of ERISA, or any successor provisions of law) and,
if applicable, for a cash payment in lieu of fractional shares, if any, the
shares of Series B Preferred Stock of such holder shall be assumed and shall
become preferred stock of such successor or resulting company, having in respect
of such company insofar as possible the same powers, preferences and relative,
participating, optional or other special rights (including the redemption rights
provided by Sections 6, 7 and 8 hereof), and the qualifications, limitations or
restrictions thereon, that the Series B preferred Stock had immediately prior to
such transaction, except that after such transaction each share of the Series B
Preferred Stock shall be convertible, otherwise on the terms and conditions
provided by Sections 5 and 7 hereof, into the number and kind of qualifying
employer securities so receivable by a holder of the number of shares of Common
Stock into which such shares of Series B Preferred Stock could have been
converted immediately prior to such transaction if such holder of Common Stock
failed to exercise any rights of election to receive any kind or amount of
stock, securities, cash or other property (other than such qualifying employer
securities and a cash payment, if applicable, in lieu of fractional shares;
receivable upon such transaction (provided that, if the kind or amount of
qualifying employer securities receivable upon such transaction is not the same
for each non-electing share of Common Stock, then the kind and amount of
qualifying employer securities receivable upon such transaction for each
non-electing share of Common Stock shall be the kind and amount so receivable
per share by a plurality of the non-electing shares of Common Stock). The rights
of the Series B Preferred Stock as preferred stock of such successor or
resulting company shall successively be subject to adjustments pursuant to
Section 9 hereof after any such transaction as nearly equivalent to the
adjustments provided for by such section prior to such transaction. The Company
shall not merger, consolidation or similar transaction unless all then
outstanding shares of the Series B Preferred Stock shall be assumed and
authorized by the successor or resulting company as aforesaid.
(B) In the event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged for or changed,
reclassified or converted into other stock or securities or cash or any other
property, or any combination thereof, other than any such consideration which is
constituted solely of qualifying employer securities (as referred to in
paragraph (A) of this Section 8) and cash payments, if applicable, in lieu of
fractional shares, outstanding shares of Series B Preferred Stock shall, without
any action on the part of the Company or any holder thereof (but subject to
paragraph (C) of this Section 8), be automatically converted by virtue of such
merger, consolidation or similar transaction immediately prior to such
consummation into the number of shares of Common Stock into which such shares of
Series B Preferred Stock could have been converted at such time so that each
share of Series B Preferred Stock shall, be virtue of such transaction and on
the same terms as apply to the holders of Common Stock, be converted into or
exchanged for the aggregate amount of stock, securities, cash or other property
(payable in like kind) receivable by a holder of the number of shares of Common
Stock into which such shares of Series B Preferred Stock could have been
converted immediately prior to such transaction if such holder of Common Stock
failed to exercise any rights of election as to the kind or amount of stock,
securities, cash or other property receivable upon such transaction (provided
that, if the kind or amount of stock, securities, cash or other property
receivable upon such transaction is not the same for each non-electing share of
Common Stock, then the kind and amount of stock, securities, cash or other
property receivable upon such transaction for each non-electing share of Common
Stock shall be the kind and amount so receivable per share by a plurality of the
non-electing shares of Common Stock).
(C) In the event the Company shall enter into any agreement providing for
any consolidation, merger, or similar transaction described in paragraph (B) of
this Section 8, then the Company shall as soon as practicable thereafter (and in
any event at least ten (10) business days before consummation of such
transaction) give notice of such agreement and the material terms thereof to
each holder of Series B Preferred Stock and each such holder shall have the
right to elect, by written notice to the Company, to receive, upon consummation
of such transaction (if and when such transaction is consummated), from the
Company or the successor of the Company, out of funds legally available
therefor, in redemption and retirement of such Series B Preferred Stock, a cash
payment equal to the amount payable in respect of shares of Series B Preferred
Stock upon redemption pursuant to paragraph (A) of Section 6 hereof. No such
notice of redemption shall be effective unless given to the Company prior to the
close of business on the second business day prior to consummation of such
transaction, unless the Company of the successor of the Company shall waive such
prior notice, but any notice of redemption so given prior to such time may be
withdrawn by notice of withdrawal given to the Company prior to the close of
business on the second business day prior to consummation of such transaction.
Section 9. Anti-dilution Adjustments.
(A) In the event the Company shall, at any time or from time to time while
any of the shares of Series B Preferred Stock are outstanding, (i) pay a
dividend or make a distribution in respect of the Common Stock in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
in each case whether by reclassification of shares, recapitalization of the
Company (including a recapitalization effected by a merger or consolidation to
which Section 8 hereof does not apply; or otherwise, subject to the provisions
of subparagraphs E and F of this Section 9, the Conversion Price in effect
immediately prior to such action shall be adjusted by multiplying such
Conversion Price by the fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately before such event and the denominator of
which is the number of shares of Common Stock outstanding immediately after such
event. An adjustment made pursuant to this paragraph 9(A) shall be given effect,
upon payment of such a dividend or distribution, as of the record date for the
determination of shareholders entitled to receive such dividend or distribution
(on a retroactive basis) and in the case of a subdivision or combination shall
become effective immediately as of the effective date thereof.
(B) In the event that the Company shall, at any time or from time to time
while any of the shares of Series B Preferred Stock are outstanding, issue to
holders of shares of Common Stock as a dividend or distribution, including by
way of a reclassification of shares or a recapitalization of the Company, any
right or warrant to purchase shares of Common Stock (but not including as such a
right or warrant (i) any security convertible into or exchangeable for shares of
Common Stock or (ii) any rights issued pursuant to or governed by the Rights
Agreement or any successor rights agreement thereto) at a purchase price per
share less than the Fair Market Value (as hereinafter defined) of a share of
Common Stock on the date of issuance of such right or warrant, then, subject to
the provisions of paragraphs (E) and (F) of this Section 9, the Conversion Price
shall be adjusted by multiplying such Conversion Price by the fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately before such issuance of rights or warrants plus the number of shares
of Common Stock which could be purchased at the Fair Market Value of a share of
Common Stock at the time of such issuance for the maximum aggregate
consideration payable upon exercise in full of all such rights or warrants and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately before such issuance of rights or warrants plus the
maximum number of shares of Common Stock that could be acquired upon exercise in
full of all such rights and warrants.
(C) In the event the Company shall, at any time or from time to time while
any of the shares of Series B Preferred Stock are outstanding, issue, sell or
exchange shares of Common Stock (other than pursuant to (i) any right or warrant
to purchase or acquire shares of Common Stock (including as such a right or
warrant any security convertible into or exchangeable for shares of Common
Stock), (ii) any rights issued pursuant to or governed by the Rights Agreement
or any successor rights agreement, and (iii) any employee or director incentive
or benefit plan or arrangement, including any employment, severance or
consulting agreement, of the Company or any subsidiary of the Company heretofore
or hereafter adopted) for a consideration having a Fair Market Value of Common
Stock on the date of such issuance, sale or exchange less than the Fair Market
Value of such shares of Common Stock on the date of such issuance, sale or
exchange, then, subject to the provisions of paragraphs (E) and (F) of this
Section 9, the Conversion Price shall be adjusted by multiplying such Conversion
Price by the fraction the numerator of which shall be the sum of (i) the Fair
Market Value of all the shares of Common Stock outstanding on the day
immediately preceding the first public announcement of such issuance, sale or
exchange plus (ii) the Fair Market Value of the consideration received by the
Company in respect of such issuance, sale or exchange of shares of Common Stock,
and the denominator of which shall be the product of (i) the Fair Market Value
of a share of Common Stock on the day immediately preceding the first public
announcement of such issuance, sale or exchange multiplied by (ii) the sum of
the number of shares of Common Stock outstanding on such day plus the number of
shares of Common Stock so issued, sold or exchanged by the Company. In the event
the Company shall, at any time or from time to time while any shares of Series B
Preferred Stock are outstanding, issue, sell or exchange any right or warrant to
purchase or acquire shares of Common Stock (including as such a right or warrant
any security convertible into or exchangeable for shares of Common Stock), other
than any such issuance (i) to holders of shares of Common Stock as a dividend or
distribution (including by way of a reclassification of shares or a
recapitalization of the Company), (ii) of rights issued pursuant to or governed
by the Rights Agreement or any successor rights agreement thereto, and (iii)
pursuant to any employee or director incentive or benefit plan or arrangement
(including any employment, severance or consulting agreement) of the Company or
any subsidiary of the Company heretofore or hereafter adopted, for a
consideration having a Fair Market Value on the date of such issuance, sale or
exchange less than the Non-Dilutive Amount (as hereinafter defined), then,
subject to the provisions of paragraphs (E) and (F) of this Section 9, the
Conversion Price shall be adjusted by multiplying such Conversion Price by the
fraction the numerator of which shall be the sum of (i) the Fair Market Value of
all the shares of Common Stock outstanding on the day immediately preceding the
first public announcement of such issuance, sale or exchange plus (ii) the Fair
Market Value of the consideration received by the Company in respect of such
issuance, sale or exchange of such right or warrant plus (iii) the Fair Market
Value at the time of such issuance of the consideration which the Company would
receive upon exercise in full of all such rights or warrants, and the
denominator of which shall be the product of (i) the Fair Market Value of a
share of Common Stock on the day immediately preceding the first public
announcement of such issuance, sale or exchange multiplied by (ii) the sum of
the number of shares of Common Stock outstanding on such day plus the maximum
number of shares of Common Stock which could be acquired pursuant to such right
or warrant at the time of the issuance, sale or exchange of such right or
warrant (assuming shares of Common Stock could be acquired pursuant to such
right or warrant at such time).
(D) In the event the Company shall, at any time or from time to time while
any of the shares of Series B Preferred Stock are outstanding, make an
Extraordinary Distribution (as hereinafter defined) in respect of the Common
Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Company (including a recapitalization or
reclassification effected by a merger or consolidation to which Section 8 hereof
does not apply) or effect a Pro Rata Repurchase (as hereinafter defined) of
Common Stock, the Conversion Price in effect immediately prior to such
Extraordinary Distribution or Pro Rata Repurchase shall, subject to paragraphs
(E) and (F) of this Section 9, be adjusted by multiplying such Conversion Price
by the fraction, the numerator of which is (i) the product of (x) the number of
shares of Common Stock outstanding immediately before such Extraordinary
Distribution or Pro Rata Repurchase multiplied by (y) the Fair Market Value (as
herein defined) of a share of Common Stock on the day before the ex-dividend
date with respect to an Extraordinary Distribution which is paid in cash and on
the distribution date with respect to an Extraordinary Distribution which is
paid other than in cash, or on the applicable expiration date (including all
extensions thereof) of any tender offer which is a Pro Rata Repurchase, or on
the date of purchase with respect to any Pro Rata Repurchase which is not a
tender offer, as the case may be, minus (ii) the Fair Market Value of the
Extraordinary Distribution or the aggregate purchase price of the Pro Rata
Repurchase, as the case may be, and the denominator of which shall be the
product of (A) the number of shares of Common Stock outstanding immediately
before such Extraordinary Dividend or Pro Rata Repurchase minus, in the case of
a Pro Rata Repurchase, the number of shares of Common Stock repurchased by the
Company multiplied by (B) the Fair Market Value of a share of Common Stock on
the day before the ex-dividend date with respect to an Extraordinary
Distribution which is paid in cash and on the distribution date with respect to
an Extraordinary Distribution which is paid other than in cash or on the
applicable expiration date (including all extensions thereof) of any tender
offer which is a Pro Rata Repurchase or on the date of purchase with respect to
any Pro Rata Repurchase which is not a tender offer, as the case may be. The
Company shall send each holder of Series B Preferred Stock (i) notice of its
intent to make any dividend or distribution and (ii) notice of any offer by the
Company to make a Pro Rata Repurchase, in each case at the same time as, or as
soon as practicable after, such offer is first communicated (including by
announcement of a record date in accordance with the rules of any stock exchange
on which the Common Stock is listed or admitted to trading) to holders of Common
Stock. Such notice shall indicate the intended record date and the amount and
nature of such dividend or distribution, or the number of shares subject to such
offer for a Pro Rata Repurchase and the purchase price payable by the Company
pursuant to such offer, as well as the Conversion Price and the numbers of
shares of Common Stock into which a share of Series B Preferred Stock may be
converted at such time.
(E) Notwithstanding any other provisions of this Section 9, the Company
shall not be required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Conversion Price. Any lesser adjustment shall be carried forward and shall
be made no later than the time of, and together with, the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least one percent (1%) in
the Conversion Price.
(F) If the Company shall make any dividend or distribution on the Common
Stock or issue any Common Stock, other capital stock or other security of the
Company or any rights or warrants to purchase or acquire any such security,
which transaction does not result in an adjustment to the Conversion Price
pursuant to the foregoing provisions of this Section 9, the Board of Directors
of the Company shall consider whether such action is of such a nature that an
adjustment to the Conversion Price should equitably be made in respect of such
transaction. If in such case the Board of Directors of the Company determines
that an adjustment to the Conversion Price should be made, an adjustment shall
be made effective as of such date, as determined by the Board of Directors of
the Company, which adjustment shall in no event adversely effect the powers,
preferences or special rights of the Series B Preferred Stock as set forth
herein. The determination of the Board of Directors of the Company as to whether
an adjustment to the Conversion Price should be made pursuant to the foregoing
provisions of this paragraph 9(F), and, if so, as to what adjustment should be
made and when, shall be final and binding on the Company and all stockholders of
the Company. The Company shall be entitled to make such additional adjustments
in the Conversion Price, in addition to those required by the foregoing
provisions of this Section 9, as shall be necessary in order that any dividend
or distribution in shares of capital stock of the Company, subdivision,
reclassification or combination of shares of stock of the Company or any
recapitalization of the Company shall not be taxable to holders of the Common
Stock.
(G) For purposes of this Resolution, the following definitions shall apply:
The term "business day" shall mean each day that is not a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York or Fort Worth, Texas are not required to be open.
"Extraordinary Distribution" shall mean any dividend or other distribution
to holders of Common stock (effected while any of the shares of Series B
Preferred Stock are outstanding) (i) of cash, where the aggregate amount of such
cash dividend or distribution together with the amount of all cash dividends and
distributions made during the preceding period of 12 months, when combined with
the aggregate amount of all Pro Rata Repurchases (for this purpose, including
only that portion of the aggregate purchase price of such Pro Rata Repurchase
which is in excess of the Fair Market Value of the Common Stock repurchased as
determined on the applicable expiration date, including all extensions thereof,
of any tender offer or exchange offer which is a Pro Rata Repurchase, or the
date of purchase with respect to any other Pro Rata Repurchase which is not a
tender offer or exchange offer made during such period), exceeds ten percent
(10%) of the aggregate Fair Market Value of all shares of Common Stock
outstanding on the record date for determining the shareholders entitled to
receive such Extraordinary Distribution and (ii) of any shares of capital stock
of the Company (other than shares of Common Stock), other securities of the
Company (other than securities of the type referred to in paragraph (B) of this
Section 9), evidences of indebtedness of the Company or any other person or any
other property (including shares of any subsidiary of the Company), or any
combination thereof. The Fair Market Value of an Extraordinary Distribution for
purposes of paragraph (D) of this Section 9 shall be the sum of the Fair Market
Value of such Extraordinary Distribution plus the amount of any cash dividends
which are not Extraordinary Distributions made during such twelve month period
and not previously included in the calculation of an adjustment pursuant to
paragraph (D) of this Section 9.
"Fair Market Value" shall mean, as to shares of Common Stock or any other
class of capital stock or securities of the Company or any other issuer which
are publicly traded, the average of the Current Market Prices (as hereinafter
defined) of such shares or securities for each day of the Adjustment Period (as
hereinafter defined). "Current Market Price" of publicly traded shares of Common
Stock or any other class of capital stock or other security of the Company or
any other issuer for a day shall mean (i) for purposes of Sections 6 and 7
hereof, the mean between the highest and lowest reported sales price on such day
and (ii) for all other purposes hereof, the last reported sales price, regular
way, or, in case no sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in either case as reported on the New
York Stock Exchange Composite Tape or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on the principal national
securities exchange on which such security is listed or admitted to trading or,
if not listed or admitted to trading on any national securities exchange, on the
NASDAQ National Market System or, if such security is not quoted on such
National Market System, the average of the closing bid and asked prices on each
such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a market
in such security selected for such purpose by the Board of Directors of the
Company or a committee thereof on each trading day during the Adjustment Period.
"Adjustment Period" shall mean the period of five (5) consecutive trading
days, selected by the Board of Directors of the Company or a committee thereof
in a manner determined by such Board of Directors or committee to be most
favorable to the holders of the Series B Preferred Stock, during the twenty (20)
trading days preceding, and including, the date as of which the Fair Market
Value of a security is to be determined. The "Fair Market Value" of any security
(except with respect to the Series B Preferred Stock) which is not publicly
traded or of any other property shall mean the fair value thereof as determined
by an independent investment banking or appraisal firm experienced in the
valuation of such securities or property selected in good faith by the Board of
Directors of the Company or a committee thereof, or, if no such investment
banking or appraisal firm is in the good faith judgment of the Board of
Directors or such committee available to make such determination, as determined
in good faith by the Board of Directors of the Company or such committee. The
"Fair Market Value" of the Series B Preferred Stock shall be the value
determined by an independent appraisal firm appointed by the Trustee, provided
that in determining such value, such appraisal firm shall not take into account
any accrued but unpaid Preferred Dividends.
"Non-Dilutive Amount" in respect of an issuance, sale or exchange by the
Company of any right or warrant to purchase or acquire shares of Common Stock
(including any security convertible into or exchangeable for shares of Common
Stock) shall mean the remainder of (i) the product of the Fair Market value of a
share of Common Stock on the day preceding the first announcement of such
issuance, sale or exchange multiplied by the maximum number of shares of Common
Stock which could be acquired on such date upon the exercise in full of such
rights and warrants (including upon the conversion or exchange of all such
convertible or exchangeable securities), whether or not exercisable (or
convertible or exchangeable) at such date, minus (ii) the aggregate amount
payable to the Company pursuant to such right or warrant to purchase or acquire
such maximum number of shares of Common Stock; provided, however, that in no
event shall the Non-Dilutive Amount be less than zero. For purposes of the
foregoing sentence, in the case of a security convertible into or exchangeable
for shares of Common Stock, the amount payable pursuant to a right or warrant to
purchase or acquire shares of Common Stock shall be the Fair Market Value of
such security on the date of the issuance, sale or exchange of such security by
the Company.
"Pro Rata Repurchase" shall mean any purchase of shares of Common Stock by
the Company or any subsidiary thereof, whether for cash, shares of capital stock
of the Company, other securities of the Company, evidences of indebtedness of
the Company or any other person or any other property (including shares of a
subsidiary of the Company), or any combination thereof, effected while any of
the shares of Series B Preferred Stock are outstanding, pursuant to any tender
offer or exchange offer subject to Section 13(e) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any successor provision of law, or
pursuant to any other offer available to substantially all holders of Common
Stock; provided, however, that no purchase of shares by the Company or any
subsidiary thereof made in open market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this paragraph 9(G), shares shall be deemed to have
been purchased by the Company or any subsidiary thereof "in open market
transactions" if they have been purchased substantially in accordance with the
requirements of Rule 10b-18 as in effect under the Exchange Act, on the date
shares of Series B Preferred Stock are initially issued by the Company or on
such other terms and conditions as the Board of Directors of the Company or a
committee thereof shall have determined are reasonably designed to prevent such
purchases from having a material effect on the trading market for the Common
Stock.
(H) Whenever an adjustment to the Conversion Price and the related voting
rights of the Series B Preferred Stock is required pursuant to this Resolution,
the Company shall forthwith place on file with the transfer agent for the Common
Stock and the Series B Preferred Stock if there be one, and with the Secretary
of the Company, a statement signed by two officers of the Company stating the
adjusted Conversion Price determined as provided herein and the resulting
conversion ratio, and the voting rights (as appropriately adjusted), of the
Series B Preferred Stock. Such statement shall set forth in reasonable detail
such facts as shall be necessary to show the reason and the manner of computing
such adjustment, including any determination of Fair Market Value involved in
such computation. Promptly after each adjustment to the Conversion Price and the
related voting rights of the Series B Preferred Stock, the Company shall mail a
notice thereof and of the then prevailing conversion ratio to each holder of
shares of the Series B Preferred Stock.
Section 10. Ranking; Attributable Capital and Adequacy of Surplus;
Retirement of Shares.
(A) The Series B Preferred Stock shall rank senior to (i) the Common Stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up of the Company, and (ii) the Series A Junior
Participating Preferred Stock as to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding-up. Unless
otherwise provided in the Restated Certificate of Incorporation of the Company,
as amended, or a Certificate of Designations relating to a subsequent series of
Preferred Stock, without par value, of the Company, the Series B Preferred Stock
shall rank junior to all other subsequent series of the Company's Preferred
Stock, without par value, as to the payment of dividends and the distribution of
assets on liquidation, dissolution or winding up.
(B) The capital of the Company allocable to the Series B Preferred Stock
for purposes of the Delaware General Corporation Law (the "Corporation Law")
shall be $1.00 per share. In addition to any vote of stockholders required by
law, the vote of the holders of a majority of the outstanding shares of Series B
Preferred Stock shall be required to increase the par value of the Common Stock
or otherwise increase the capital of the Company allocable to the Common Stock
for the purpose of the Corporation Law if, as a result thereof, the surplus of
the Company for purposes of the Corporation Law would be less than the amount of
Preferred Dividends that would accrue on the then outstanding shares of Series B
Preferred Stock during the following three years.
(C) Any shares of Series B Preferred Stock acquired by the Company by
reason of the conversion or redemption of such shares as provided by this
Resolution, or otherwise so acquired, shall be retired as shares of Series B
Preferred Stock and restored to the status of authorized but unissued shares of
preferred Stock, without par value, of the Company, undesignated as to series,
and may thereafter be reissued as part of a new series of such Preferred Stock
as permitted by law.
Section 11. Miscellaneous.
(A) All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of receipt thereof
or three (3) business days after the mailing thereof if sent by registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this Resolution) with postage prepaid, addressed: (i) if to the
Company, to its office at 1800 One Tandy Center, Fort Worth, Texas 76102,
(Attention: Herschel C. Winn, Senior Vice President and Secretary) or the
transfer Agent for the Series B Preferred Stock, or other agent of the Company
designated as permitted by this Resolution or (ii) if to any holder of the
Series B Preferred Stock or Common Stock, as the case may be, to such holder at
the address of such holder as listed in the stock record books of the Company
(which may include the records of any transfer agent for the Series B Preferred
Stock or Common Stock, as the case may be) or (iii) to such other address as the
Company or any such holder, as the case may be, shall have designated by notice
similarly given.
(B) The term "Common Stock" as used in this Resolution means the Company's
Common Stock of $1.00 par value, as the same exists at the date of filing of a
Certificate of Designations relating to Series B Preferred Stock, or any other
class of stock resulting from successive changes or reclassifications of such
Common Stock consisting solely of changes in par value. In the event that, at
any time as a result of an adjustment made pursuant to Section 9 of this
Resolution, the holder of any share of the Series B Preferred Stock upon
thereafter surrendering such shares for conversion shall become entitled to
receive any shares or other securities of the Company other than shares of
Common Stock, the Conversion Price in respect of such other shares or securities
so receivable upon conversion of shares of Series B Preferred Stock shall
thereafter be adjusted, and shall be subject to further adjustment from time to
time, in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in Section 9 hereof, and the
provisions of Sections 1 through 8 and 10 and 11 of this Resolution with respect
to the Common Stock shall apply on like or similar terms to any such other
shares or securities.
(C) The Company shall pay any and all stock transfer and documentary stamp
taxes that may be payable in respect of any issuance or delivery of shares of
Series B Preferred Stock or shares of Common Stock or other securities issued on
account of Series B Preferred Stock pursuant hereto or certificates representing
such shares or securities. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issuance or delivery of shares of Series B Preferred Stock or Common Stock or
other securities in a name other than that in which the shares of Series B
Preferred Stock with respect to which such shares or other securities are issued
or delivered were registered, or in respect of any payment to any person with
respect to any such shares or securities other than a payment to the registered
holder thereof, and shall not be required to make any such issuance, delivery or
payment unless and until the person otherwise entitled to such issuance,
delivery or payment has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid or
is not payable.
(D) In the event that a holder of shares of Series B Preferred Stock shall
not be written notice designate the name in which shares of Common Stock to be
issued upon conversion of such shares should be registered or to whom payment
upon redemption of shares of Series B Preferred Stock should be made or the
address to which the certificate or certificates representing such shares, or
such payment, should be sent, the Company shall be entitled to register such
shares, and make such payment, in the name of the holder of such Series B
Preferred Stock as shown on the records of the Company and to send the
certificate or certificates representing such shares, or such payment, to the
address of such holder shown on the records of the Company.
(E) Unless otherwise provided in the Restated Certificate of Incorporation,
as amended, of the Company, all payments in the form of dividends, distributions
on voluntary or involuntary dissolution, liquidation or winding-up or otherwise
made upon the shares of Series B Preferred Stock and any other stock ranking on
a parity with the Series B Preferred Stock with respect to such dividend or
distribution shall be made pro rata, so that amounts paid per share on the
Series B Preferred Stock and such other stock shall in all cases bear to each
other the same ratio that the required dividends, distributions or payments, as
the case may be, then payable per share on the shares of the Series B Preferred
Stock and such other stock bear to each other.
(F) The Company may appoint, and from time to time discharge and change, a
transfer agent for the Series B Preferred Stock. Upon any such appointment or
discharge of a transfer agent, the Company shall send notice thereof by
first-class mail, postage prepaid, to each holder of record of Series B
Preferred Stock.
IN WITNESS WHEREOF, the undersigned have executed and subscribed this
Certificate of Designations and have affixed the seal of the Company hereto and
do affirm the foregoing as true under the penalties of perjury this 29th day of
June, 1990.
/s/ John V. Roach
John V. Roach
Chairman and Chief
Executive Officer
ATTEST:
/s/ Herschel C. Winn
Herschel C. Winn
Secretary
TANDY CORPORATION BYLAWS
RESTATED AS OF
JANUARY 1, 1996
ARTICLE I
OFFICES
SECTION 1. Registered Office. The Registered office of the Corporation in
the State of Delaware shall be located in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge thereof
shall be The Corporation Trust Company.
SECTION 2. Other Offices. The principal office shall be at 1800 One Tandy
Center, Fort Worth, Texas. The Corporation may also have offices at other places
as the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meeting. All meetings of the stockholders for the
election of directors shall be held at such place within or without the State of
Delaware as the Board of Directors may designate, provided that at least ten
(10) days' notice must be given to the stockholders entitled to vote thereat of
the place so fixed. Until the Board of Directors shall designate otherwise the
annual meeting of stockholders and the election of directors shall take place at
the office of the Corporation at 1800 One Tandy Center, Fort Worth, Texas.
Meetings of stockholders for any other purpose may be held at such place and
time as shall be stated in the notice of the meeting.
SECTION 2. Annual Meetings. The annual meeting of the stockholders for the
year 1993 shall be held on October 7, 1993, at 10:00 A.M., or on such other date
and at such other time as shall be designated by the Board of Directors and
stated in the notice of the meeting. The annual meeting of the stockholders
shall be held on the Third Thursday in May of each year beginning with the year
1994, if not a legal holiday, and if a legal holiday, then on the next business
day following, at 10:00 A.M., or on such other date and at such other time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. At such annual meetings the stockholders shall elect
a Board of Directors by a plurality vote and shall transact such other business
as may properly be brought before the meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or the Certificate
of InCorporation, may be called by the Chairman of the Board or the President,
and shall be called by the Secretary at the request in writing of a majority of
the Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting.
SECTION 4. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the time and place thereof, and, if a
special meeting, the purpose or purposes in general terms for which the meeting
is called, shall not be less than ten (10) days before such meeting be served
upon or mailed to each stockholder entitled to vote thereat, at his address as
it appears upon the books of the Corporation or, if such stockholder shall have
filed with the Secretary of the Corporation a written request that notices
intended for him be mailed to some other address, then to the address designated
in such request.
SECTION 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the presence in person or by proxy at any meeting
of stockholders of the holders of a majority of the shares of the capital stock
of the Corporation issued and outstanding and entitled to vote thereat shall be
requisite and shall constitute a quorum. If, however, such majority shall not be
represented at any meeting of the stockholders regularly called, the holders of
a majority of the shares present in person or by proxy and entitled to vote
thereat shall have power to adjourn the meeting to another time, or to another
time and place, without notice other than announcement of adjournment at the
meeting, and there may be successive adjournments for like cause and in like
manner until the requisite amount of shares entitled to vote at such meeting
shall be represented. At such adjourned meeting at which the requisite amount of
shares entitled to vote thereat shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 6. Votes. Proxies. At each meeting of stockholders every
stockholder shall have one vote for each share of capital stock entitled to vote
which is registered in his name on the books of the Corporation on the date on
which the transfer books were closed, if closed, or on the date set by the Board
of Directors for the determination of stockholders entitled to vote at such
meeting. At each such meeting every stockholder shall be entitled to vote in
person, or by proxy appointed by an instrument in writing subscribed by such
stockholder and bearing a date not more than three years prior to the meeting in
question, unless said instrument provides for a longer period during which it is
to remain in force.
At all meetings of the stockholders, a quorum being present, all matters
shall be decided by majority vote of the shares of stock entitled to vote held
by stockholders present in person or by proxy, except as otherwise required by
the Certificate of Incorporation or the laws of the State of Delaware. Unless so
directed by the chairman of the meeting, or required by the laws of the State of
Delaware, the vote thereat on any question need not be by ballot.
On a vote by ballot, each ballot shall be signed by the stockholder voting,
or in his name by his proxy, if there be such proxy, and shall state the number
of shares voted by him and the number of votes to which each share is entitled.
On a vote by ballot, the chairman shall appoint two inspectors of election, who
shall first take and subscribe an oath or affirmation faithfully to execute the
duties of inspector at such meeting with strict impartiality and according to
the best of their ability and who shall take charge of the polls and after the
balloting shall make a certificate of the result of the vote taken; but no
director or candidate for the office of director shall be appointed as such
inspector.
SECTION 7. Stock List. At least ten (10) days before every election of
directors, a complete list of stockholders entitled to vote at such election,
arranged in alphabetical order, with the residence of each and the number of
voting shares held by each shall be prepared by the Secretary. Such list shall
be open at the place where the election is to be held for said ten (10) days, to
the examination of any stockholder entitled to vote at that election and shall
be produced and kept at the time and place of election during the whole time
thereof, and subject to the inspection of any stockholder who may be present.
SECTION 8. Notice of Stockholder Proposals.
(a) At an annual meeting of the stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
brought before the annual meeting (i) by, or at the direction of, the Board of
Directors or (ii) by any stockholder of record of the Corporation who complies
with the notice procedures set forth in this Section 8 of these Bylaws. For a
proposal to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the scheduled
annual meeting, regardless of any postponements, deferrals or adjournments of
that meeting to a later date; provided, however, that if less than seventy (70)
days' notice or prior public disclosure of the date of the scheduled annual
meeting is given or made, notice by the stockholder to be timely must be so
delivered or received not later than the close of business on the tenth (10th)
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the Corporation's books, of the stockholder
proposing such business and any other stockholders known by such stockholder to
be supporting such proposal, (iii) the class and number of shares of the
Corporation's stock which are beneficially owned by the stockholder on the date
of such stockholder notice and by any other stockholders known by such
stockholder to be supporting such proposal on the date of such stockholder
notice, and (iv) any financial interest of the stockholder in such proposal.
(b) If the presiding officer of the annual meeting determines that a
stockholder proposal was not made in accordance with the terms of this Section
8, he shall so declare at the annual meeting and any such proposal shall not be
acted upon at the annual meeting.
(c) This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but, in connection with such reports, no
business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
(d) Any stockholder seeking to bring a proposal before an annual meeting of
the Corporation shall continue to be subject, to the extent applicable, to the
requirements of Section 14(a) of the Securities Act of 1934, as amended, and the
regulations thereunder, as well as the requirements of this Section 8.
ARTICLE III
DIRECTORS
SECTION 1. Number. The business and property of the Corporation shall be
conducted and managed by a Board of Directors consisting of not less than three
(3) or more than fourteen (14) members, none of whom need be a stockholder.
The Board of Directors of the Corporation shall initially be composed of
three (3) directors, but the Board may at any time by resolution increase or
decrease the number of directors to not more than fourteen (14) or less than
three (3). The vacancies resulting from any such increase in the Board of
Directors, or an increase resulting from an amendment of this Section, shall be
filled as provided in Section 3 of this ARTICLE III.
SECTION 2. Term of Office. Except as otherwise provided by law such
director shall hold office until the next annual meeting of stockholders, and
until his successor is duly elected and qualified or until his earlier death or
resignation.
SECTION 3. Vacancies. If any vacancy shall occur among the directors, or if
the number of directors shall at any time be increased, the directors in office,
although less than a quorum, by a majority vote may fill the vacancies or newly
created directorships, or any such vacancies or newly created directorships may
be filled by the stockholders at any meeting. When one or more directors shall
resign from the Board of Directors, effective at a future date, a majority of
the directors then in office, including those who have so resigned, shall have
power to fill such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each director so
chosen shall hold office as herein provided in the filling of other vacancies.
SECTION 4. Meetings. Meetings of the Board of Directors shall be held at
such place within or without the State of Delaware as may from time to time be
fixed by resolution of the Board of Directors or by the Chairman of the Board,
or the CEO as may be specified in the notice or waiver of notice of any meeting.
A regular meeting of the Board of Directors may be held without notice
immediately following the annual meeting of stockholders at the place where such
annual meeting is held. Regular meetings of the Board may also be held without
notice at such time and place as shall from time to time be determined by
resolution of the Board of Directors.
Special meetings of the Board of Directors may be called by the Chairman of
the Board, the CEO or the Secretary and shall be called by the Secretary on the
written request of two members of the Board of Directors. Notice of any special
meeting shall be given to each director at least (a) twelve (12) hours before
the meeting by telephone or by being personally delivered or sent by telex,
telecopy, telegraph, or similar means or (b) three (3) days before the meeting
if delivered by mail to the director's residence or usual place of business.
Such notice shall be deemed to be delivered when deposited in the United States
mail so addressed, with postage prepaid, or when transmitted if sent by telex,
telecopy, telegraph or similar means. Neither the business to be transacted at,
nor the purpose of, any special meeting of the Board of Directors needs to be
specified in the notice or waiver of notice of such meeting.
Members of the Board of Directors may participate in a meeting of such
Board by means of conference telephone or similar communication equipment by
means of which all persons participating in the meeting can hear each other, and
participation in the meeting pursuant hereto shall constitute presence in person
at such meeting.
Any director may waive notice of any meeting by a writing signed by the
director entitled to the notice and filed with the minutes or corporate records.
The attendance at or participation of the director at a meeting shall constitute
waiver of notice of such meeting, unless the director at the beginning of the
meeting or promptly upon his arrival objects to holding the meeting or
transacting business at the meeting.
SECTION 5. Quorum. A majority, but not less than two (2), of the directors
shall constitute a quorum for the transaction of business. If at any meeting of
the Board of Directors there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time without notice other
than announcement of the adjournment at the meeting, and at such adjourned
meeting at which a quorum is present any business may be transacted which might
have been transacted at the meeting as originally notified.
SECTION 6. Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors, a fixed sum for
attendance at each meeting of the Board of Directors and/or a stated fee as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of the Executive Committee and/or of other committees may be allowed like
compensation and reimbursement of expenses for attending committee meetings.
SECTION 7. Chairman. From its members, the Board of Directors will elect a
chairman to preside over meetings of the shareholders and of the Board. The
Chairman may simultaneously serve as any Officer of the Corporation set forth in
Article V. The Board may elect one or more Vice Chairmen. In the absence of the
Chairman or a Vice Chairman, if any, the Board shall designate a person to
preside at such meetings. The director's fee of the Chairman and the Vice
Chairman, if any, will be set by the Board.
SECTION 8. Director Nominations. Nominations for the election of directors
may be made by the Board of Directors or a nominating committee appointed by the
Board of Directors or by any stockholder entitled to vote in the election of
directors generally. However, any stockholder entitled to vote in the election
of directors generally may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal delivery
or by United States mail, postage prepaid, to the Secretary of the Corporation
not later than (i) with respect to an election to be held at an annual meeting
of stockholders, ninety (90) days prior to the first anniversary date of the
immediately preceding annual meeting, and (ii) with respect to an election to be
held at a special meeting of stockholders for the election of directors, the
close of business on the tenth (10th) day following the date on which notice of
such meeting is first given to stockholders. Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated: (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
at such meeting and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (c) a description of all
arrangements or understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission as then in effect; and (e) the consent
of each nominee to serve as a director of the Corporation if so elected. The
presiding officer of the meeting may refuse to acknowledge the nomination of any
person not made in compliance with the foregoing procedure.
ARTICLE IV
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
SECTION 1. Executive Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Executive Committee of two
(2) or more members, to serve during the pleasure of the Board of Directors, to
consist of such directors as the Board of Directors may from time to time
designate. The Chairman of the Executive Committee shall be designated by the
Board of Directors.
SECTION 2. Procedure. The Executive Committee, by a vote of a majority of
its members, shall fix its own times and places of meeting, shall determine the
number of its members constituting a quorum for the transaction of business, and
shall prescribe its own rules of procedure, no change in which shall be made
save by a majority vote of its members. Members of the Executive Committee or
any other committee may participate in a meeting of such Committee by means of
conference telephone or similar communication equipment by means of which all
persons participating in the meeting can hear each other, and participation in
the meeting pursuant hereto shall constitute presence in person at such meeting.
SECTION 3. Powers. During the intervals between the meetings of the Board
of Directors, the Executive Committee shall possess and may exercise all the
powers of the Board of Directors in the management and direction of the business
and affairs of the Corporation, to the extent permitted by law.
SECTION 4. Minutes. The Executive Committee shall keep regular minutes of
its proceedings and all action by the Executive Committee shall be reported to
the Board of Directors at its next meeting. Such action shall be subject to
review by the Board of Directors, provided that no rights of third parties shall
be affected by such review.
SECTION 5. Other Committees. From time to time the Board of Directors, by
the affirmative vote of a majority of the whole Board of Directors, may appoint
other committees for any purpose or purposes, and such committees shall have
such powers as shall be conferred by the resolution of appointment, and as shall
be permitted by law.
ARTICLE V
OFFICERS
SECTION 1. Officers. The Board of Directors shall elect, as officers, a
Chief Executive Officer ("CEO"), a President, a Treasurer and a Secretary, and
in their discretion one or more of the following officers: Executive Vice
Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries, and
Assistant Treasurers. Such officers shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of stockholders, and
each shall hold office until the corresponding meeting of the Board of Directors
in the next year and until his successor shall have been duly elected and
qualified, or until he shall have died or resigned or shall have been removed in
the manner provided herein. The powers and duties of two or more offices may be
exercised and performed by the same person, except the offices of CEO and
Secretary.
SECTION 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
SECTION 3. Chief Executive Officer The Chief Executive Officer shall be the
chief executive officer (CEO) of the Corporation. Subject to the direction of
the Board of Directors, he shall have and exercise direct charge of and general
supervision over the business and affairs of the Corporation and shall perform
such other duties as may be assigned to him from time to time by the Board of
Directors.
SECTION 4. President. The President shall perform such duties as the Board
of Directors may prescribe. In the absence or disability of the CEO, the
President shall perform and exercise the powers of the CEO. In addition, the
President shall perform such duties as from time to time may be delegated to him
by the CEO.
SECTION 5. Executive Vice Presidents. The Executive Vice Presidents shall
perform such duties as the Board of Directors may prescribe. In the absence or
disability of the CEO and President, the Executive Vice Presidents in the order
of their seniority or in such order as may be specified by the Board of
Directors, shall perform the duties of CEO. In addition, the Executive Vice
Presidents shall perform such duties as may from time to time be delegated to
them by the CEO.
SECTION 6. Senior Vice Presidents. The Senior Vice Presidents shall perform
such duties as the Board of Directors may prescribe. In the absence or
disability of the CEO, President, and the Executive Vice Presidents, the Senior
Vice Presidents in the order of their seniority or in such other order as may be
specified by the Board of Directors, shall perform the duties and exercise the
powers of the President. In addition, the Senior Vice Presidents shall perform
such duties as from time to time may be delegated to them by the CEO.
SECTION 7. Vice Presidents. The Vice Presidents shall perform such duties
as the Board of Directors may prescribe. In the absence or disability of the
CEO, President, the Executive Vice Presidents and the Senior Vice Presidents,
the Vice Presidents in the order of their seniority or in such other order as
may be specified by the Board of Directors, shall perform the duties and
exercise the powers of the President. In addition, the Vice Presidents shall
perform such duties as may from time to time be delegated to them by the CEO.
SECTION 8. Treasurer. The Treasurer shall have charge of and be responsible
for all funds, securities, receipts and disbursements of the Corporation, and
shall deposit, or cause to be deposited, in the name of the Corporation, all
moneys or other valuable effects in such banks, trust companies or other
depositaries as shall, from time to time, be selected by the Board of Directors;
he may endorse for collection on behalf of the Corporation, checks, notes and
other obligations; he may sign receipts and vouchers for payments made to the
Corporation; singly or jointly with another person as the Board of Directors may
authorize, he may sign checks of the Corporation and pay out and dispose of the
proceeds under the direction of the Board of Directors; he shall cause to be
kept correct books of account of all the business and transactions of the
Corporation, shall see that adequate audits thereof are currently and regularly
made, and shall examine and certify the accounts of the Corporation; he shall
render to the Board of Directors, the Executive Committee, the Chairman of the
Board, the Vice Chairman, the CEO or to the President, whenever requested, an
account of the financial condition of the Corporation; he may sign with the
Chairman of the Board, the Vice Chairman of the Board, the CEO, the President or
a Vice President, certificates of stock of the Corporation; and, in general,
shall perform all the duties incident to the office of a treasurer of a
Corporation, and such other duties as from time to time may be assigned to him
by the Board of Directors.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of their
seniority shall, in the absence or disability of the Treasurer, perform the
duties and exercise the powers of the Treasurer and shall perform such other
duties as the CEO, or the Board of Directors shall prescribe.
SECTION 10. Secretary. The Secretary shall keep the minutes of all meetings
of the stockholders and of the Board of Directors in books provided for the
purpose; he shall see that all notices are duly given in accordance with the
provisions of law and these Bylaws; he shall be custodian of the records and of
the corporate seal or seals of the Corporation; he shall see that the corporate
seal is affixed to all documents, the execution of which, on behalf of the
Corporation, under its seal, is duly authorized and when the seal is so affixed
he may attest the same; he may sign, with the Chairman of the Board, the Vice
Chairman, the CEO, the President or a Vice President, certificates of stock of
the Corporation; and in general he shall perform all duties incident to the
office of a secretary of a corporation, and such other duties as from time to
time may be assigned to him by the Board of Directors or the CEO.
SECTION 11. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the CEO, or the Board of Directors shall prescribe.
SECTION 12. Subordinate Officers. The Board of Directors may appoint such
subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall have power to fix
the compensation of all officers of the Corporation. It may authorize any
officer, upon whom the power of appointing subordinate officers may have been
conferred, to fix the compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may be removed, with or
without cause, by a majority vote of the Board of Directors at a meeting called
for that purpose.
SECTION 15. Bonds. The Board of Directors may require any officer of the
Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his duties, with one or more sureties and in such amounts as may
be satisfactory to the Board of Directors.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as may be prescribed from time to
time by law and by the Board of Directors. The certificates of stock of each
class and series now authorized or which may hereafter be authorized by the
Certificate of Incorporation shall be consecutively numbered and signed by
either the Chairman of the Board or the CEO or the President or a Vice President
together either with the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer of the Corporation, and may be countersigned and
registered in such manner as the Board of Directors may prescribe, and shall
bear the corporate seal or a printed or engraved facsimile thereof. Where any
such certificate is signed by a transfer agent or transfer clerk and by a
registrar, the signatures of any such Chairman of the Board, CEO, President,
Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary
upon such certificate may be facsimiles engraved or printed. In case any officer
or officers who shall have signed, or whose facsimile signature or signatures
shall have been placed upon, such certificate or certificates shall have ceased
to be such, whether because of death, resignation or otherwise, before such
certificate or certificates shall have been issued and delivered, such
certificate or certificates may nevertheless be issued and delivered with the
same effect as if such officer or officers had not ceased to be such at the date
of its issue and delivery.
SECTION 2. Transfer of Shares. The shares of the stock of the Corporation
shall be transferred on the books of the Corporation by the holder thereof in
person or by his attorney lawfully constituted, upon surrender for cancellation
of certificates for the same number of shares, with an assignment and power of
transfer endorsed thereon or attached thereto, duly executed, with such proof or
guaranty of the authenticity of the signature as the Corporation or its agents
may reasonably require. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person whether or not
it shall have express or other notice thereof, except as otherwise expressly
provided by law.
SECTION 3. Closing of Transfer Books and Record Dates. The Board of
Directors may in its discretion prescribe in advance a period not exceeding
fifty (50) days prior to the date of any meeting of the stockholders or prior to
the last day on which the 3consent or dissent of stockholders may be effectively
expressed for any purpose without a meeting, during which no transfer of stock
on the books of the Corporation may be made; or in lieu of prohibiting the
transfer of stock, may fix in advance a time not more than fifty (50) days prior
to the date of any meeting of stockholders or prior to the last day on which the
consent or dissent of stockholders may be effectively expressed for any purpose
without a meeting, as the time as of which stockholders entitled to notice of
and to vote at such a meeting or whose consent or dissent is required or may be
expressed for any purpose, as the case may be, shall be determined; and all
persons who were holders of record of voting stock at such time and no others
shall be entitled to notice of and to vote at such meeting or to express their
consent or dissent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any record date fixed as aforesaid.
The Board of Directors may also, in its discretion, fix in advance a date not
exceeding fifty (50) days preceding the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery of evidence of
rights, or evidences of interests arising out of any issuance, change,
conversion or exchange of capital stock, as a record date for the determination
of the stockholders entitled to receive or participate in any such dividend,
distribution, rights or interests, notwithstanding any transfer of any stock on
the books of the Corporation after any record date fixed as aforesaid, or, at
its option, in lieu of so fixing a record date, may prescribe in advance a
period not exceeding fifty (50) days prior to the date for such payment,
distribution or delivery during which no transfer of stock on the books of the
Corporation may be made.
SECTION 4. Lost or Destroyed Certificates. In case of the loss or
destruction of any outstanding certificate of stock, a new certificate may be
issued upon the following conditions:
The owner of said certificate shall file with the Secretary of the
Corporation an affidavit giving the facts in relation to the ownership, and in
relation to the loss or destruction of said certificate, stating its number and
the number of shares represented thereby; such affidavit to be in such form and
contain such statements as shall satisfy the Chairman of the Board and Secretary
that said certificate has been accidentally destroyed or lost, and that a new
certificate ought to be issued in lieu thereof. Upon being so satisfied, the
Chairman of the Board and Secretary shall require such owner to file with the
Secretary a bond in such penal sum and in such form as they may deem advisable,
and with a surety or sureties approved by them, to indemnify and save harmless
the Corporation from any claim, loss, damage or liability which may be
occasioned by the issuance of a new certificate in lieu thereof, or if they deem
it appropriate, to waive the requirement to secure a bond with a surety. Upon
such bond being so filed, a new certificate for the same number of shares shall
be issued to the owner of the certificate so lost or destroyed; and the transfer
agent and registrar of stock, if any, shall countersign and register such new
certificate upon receipt of a written order signed by the said Chairman of the
Board and Secretary, and thereupon the Corporation will save harmless said
transfer agent and registrar in the premises. The CEO or the President or any
Vice President may act hereunder in the stead of the Chairman of the Board, and
an Assistant Secretary in the stead of the Secretary. In case of the surrender
of the original certificate, in lieu of which a new certificate has been issued,
or the surrender of such new certificate, for cancellation, the bond of
indemnity given as a condition of the issue of such new certificate may be
surrendered. A new certificate may be issued without requiring any bond when in
the judgment of the Board of Directors it is proper to do so.
ARTICLE VII
CHECKS, NOTES, ETC.
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors.
SECTION 2. Execution of Contracts, Assignments, etc. All contracts,
agreements, endorsements, assignments, transfers, stock powers, or other
instruments (except as provided in Sections 1 and 3 of this Article VII) shall
be signed by the CEO, the President, any Executive Vice President, Senior Vice
President, or Vice President and by the Secretary or any Assistant Secretary or
the Treasurer or any Assistant Treasurer, or by such other officer or officers,
agent or agents, as shall be thereunto authorized from time to time by the Board
of Directors.
SECTION 3. Execution of Proxies. The Chairman of the Board, the CEO,
President, or a Vice President of the Corporation may authorize from time to
time the signature and issuance of proxies to vote upon shares of stock of other
companies standing in the name of the Corporation. All such proxies shall be
signed in the name of the Corporation by the Chairman of the Board, the CEO,
President or a Vice President and by the Secretary or an Assistant Secretary.
ARTICLE VIII
WAIVERS AND CONSENTS
SECTION 1. Waivers. Whenever under the provisions of any law or under the
provisions of the Certificate of InCorporation of the Corporation or these
Bylaws, the Corporation, or the Board of Directors or any committee thereof, is
authorized to take any action after notice to stockholders or the directors or
the members of such committee, or after the lapse of a prescribed period of
time, such action may be taken without notice and without the lapse of any
period of time if, at any time before or after such action be completed, such
requirements be waived in writing by the person or persons entitled to said
notice or entitled to participate in the action to be taken, or, in the case of
a stockholder, by his attorney thereunto authorized.
SECTION 2. Consents. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting, if prior to such action a written consent
thereto is signed by all members of the Board of Directors or of such committee
as the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or of such committee.
ARTICLE IX
DIVIDENDS AND RESERVE FUNDS
SECTION 1. Dividends. Except as otherwise provided by law or by the
Certificate of InCorporation, the Board of Directors may declare dividends out
of the surplus of the Corporation at such times and in such amounts as it may
from time to time designate.
SECTION 2. Reserve Funds. Before crediting net profits to the surplus in
any year, there may be set aside out of the net profits of the Corporation for
that year such sum or sums as the Board of Directors from time to time in its
absolute discretion may deem proper as a reserve fund or funds to meet
contingencies or for equalizing dividends or for repairing or maintaining any
property of the Corporation or for such other purpose as the Board of Directors
shall deem conducive to the interests of the Corporation.
ARTICLE X
INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and if
allowed when and under what conditions and regulations, the accounts and books
of the Corporation (except such as may by statute be specifically open to
inspection) or any of them shall be open to the inspection of the stockholders;
and the stockholders' rights in this respect are and shall be restricted and
limited accordingly.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall end on the thirty first day of
December each year commencing with December 31, 1992, unless another date shall
be fixed by resolution of the Board of Directors. After such date is fixed, it
may be changed for future fiscal years at any time or from time to time by
further resolution of the Board of Directors.
ARTICLE XII
SEAL
The corporate seal shall be circular in form and shall contain the name of
the Corporation, the state of incorporation, and the words "Corporate Seal".
ARTICLE XIII
AMENDMENTS
SECTION 1. By Stockholders. These Bylaws may be amended by a majority vote
of the stock entitled to vote and present or represented at any annual or
special meeting of the stockholders at which a quorum is present or represented,
if notice of the proposed amendment shall have been contained in the notice of
the meeting.
SECTION 2. By Directors. Except as otherwise specifically provided in the
Bylaws, if any, adopted by the stockholders, these Bylaws may be amended by the
affirmative vote of a majority of the Board of Directors, at any regular meeting
or special meeting thereof, if notice of the proposed amendment shall have been
contained in the notice of such meeting. If any Bylaw regulating an impending
election of directors is adopted or amended or repealed by the Board of
Directors, there shall be set forth in the notice of the next meeting of the
stockholders for the election of directors the Bylaws so adopted or amended or
repealed together with a concise statement of the changes made.
ARTICLE XIV
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
The Corporation shall indemnify and reimburse each person, and his heirs,
executors or administrators, who is made or is threatened to be made a party to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he was or is a director, officer,
employee or agent of the Corporation or was or is serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation,
partnership, joint venture, trust, or other enterprise, against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement,
actually or reasonably incurred by him in connection with such action, suit or
proceeding and shall advance the expenses incurred by any officer or director in
defending any such action, suit or proceeding to the full extent permitted by
Section 145 of the General Corporation Law of the State of Delaware as it may be
amended or supplemented from time to time. Such right of indemnification or
advancement of expenses of any such person shall not be deemed exclusive of any
other rights to which he may be entitled under any statute, bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office.
The foregoing provisions of this Article XIV shall be deemed to be a
contract between the Corporation and each person who serves in any capacity
specified therein at any time while this bylaw is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts.
Exhibit 4
TANDY CORPORATION
1997 INCENTIVE STOCK PLAN
(includes Directors)
(as amended May 15, 1997
and
February 24, 1998)
1. Purpose.
The purpose of this Plan is to strengthen Tandy Corporation (the "Company")
by providing an incentive to its Eligible Employees (as hereinafter defined),
and directors and thereby encouraging them to devote their abilities and
industry to the success of the Company's business enterprise. It is intended
that this purpose be achieved by extending to, Eligible Employees of the Company
and its subsidiaries and to Eligible Directors an added long-term incentive for
high levels of performance and unusual efforts through the grant of Incentive
Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, Restricted
Stock, Performance Units and Performance Shares (as each term is hereinafter
defined).
2. Definitions.
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change in
Control, the greater of (i) the highest price per Share paid to holders of the
Shares in any transaction (or series of transactions) constituting or resulting
in a Change in Control or (ii) the highest Fair Market Value of a Share during
the ninety (90) day period ending on the date of a Change in Control.
2.2 "Agreement" means the written agreement between the Company and an
Optionee or Grantee evidencing the grant of an Option or Award and setting forth
the terms and conditions thereof.
2.3 "Award" means a grant of Restricted Stock, a Stock Appreciation Right,
a Performance Award or any or all of them.
2.4 "Board" means the Board of Directors of the Company.
2.5 "Cause" means the commission of an act of fraud or intentional
misrepresentation or an act of embezzlement, misappropriation or conversion of
assets or opportunities of the Company or any Subsidiary.
2.6 "Change in Capitalization" means any increase or reduction in the
number of Shares, or any change (including, but not limited to, a change in
value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination or exchange
of shares, repurchase of shares, change in corporate structure or otherwise.
2.7 A "Change in Control" shall mean the occurrence during the term of the
Plan and during the term of any Option issued under the Plan of:
(a) An acquisition (other than directly from the Company) of any voting
securities of the Company (the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act")) immediately after which such Person
has "Beneficial Ownership" (within the meaning of Rule 13d-3 promulgated under
the 1934 Act) of fifteen percent (15%) or more of the combined voting power of
the Company's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan (or a
trust forming a part thereof) maintained by (A) the Company or (B) any
corporation or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly or indirectly, by
the Company (for purposes of this definition, a "Subsidiary"), (ii) the Company
or its Subsidiaries, or (iii) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined).
(b) The individuals who, as of March 1, 1997, are members of the Board (the
"Incumbent Board"), cease for any reason to constitute at least two-thirds of
the Board; provided, however, that if the election, or nomination for election
by the Company's stockholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall, for purposes
of this Plan, be considered as a member of the Incumbent Board; provided
further, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the 1934 Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(c) Approval by stockholders of the Company of:
(i) A merger, consolidation or reorganization involving the Company, unless
(A) the stockholders of the Company, immediately before such merger,
consolidation or reorganization, own, directly or indirectly immediately
following such merger, consolidation or reorganization, at least sixty
percent (60%) of the combined voting power of the outstanding voting
securities of the corporation resulting from such merger or consolidation
or reorganization (the "Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities immediately before
such merger, consolidation or reorganization,
(B) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such
merger, consolidation or reorganization constitute at least two-thirds of
the members of the board of directors of the Surviving Corporation,
(C) no Person other than the Company, any Subsidiary, any employee
benefit plan (or any trust forming a part thereof) maintained by the
Company, the Surviving Corporation, or any Subsidiary, or any Person who,
immediately prior to such merger, consolidation or reorganization had
Beneficial Ownership of fifteen percent (15%) or more of the then
outstanding Voting Securities has Beneficial Ownership of fifteen percent
(15%) or more of the combined voting power of the Surviving Corporation's
then outstanding voting securities, and
(D) a transaction described in clauses (A) through (C) shall herein be
referred to as a "Non-Control Transaction";
(ii) A complete liquidation or dissolution of the Company; or
(iii) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person (other
than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the outstanding Voting Securities
as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and after such
share acquisition by the Company, the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
2.8 "Code" means the Internal Revenue Code of 1986, as amended.
2.9 "Committee" means a committee of the Board consisting of at least two
(2) members, all of who are Disinterested Directors appointed by the Board to
administer the Plan and to perform the functions set forth herein.
2.10 "Company" means Tandy Corporation, a Delaware Corporation.
2.11 "Director Option" means an Option granted pursuant to Section 5.
2.12 "Disability" means the suffering from a physical or mental condition
which, in the opinion of the Committee based upon appropriate medical advice and
examination and in accordance with rules applied uniformly to all employees of
the Company, totally and permanently prevents the Grantee or Optionee, as the
case may be, from performing the customary duties of his or her regular job with
the Company.
2.13 "Disinterested Director" means a director of the Company who is both a
"Non-Employee Director" within the meaning of Rule 16b-3 under the Exchange Act,
and a "Outside Director" within the meaning of Section 162(m) of the Code.
2.14 "Division" means any of the operating units or divisions of the
Company.
2.15 "Eligible Employee" means any officer or other key employee or
consultant or advisor of the Company or a Subsidiary designated by the Committee
as eligible to receive Options or Awards subject to the conditions set forth
herein.
2.16 "Eligible Director" means a director of the Company who is not an
employee at the time of grant of the Company or any Subsidiary.
2.17 "Employee Option" means an Option granted pursuant to Section 6.
2.18 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.19 "Fair Market Value" on any date means the average of the high and low
sales prices of the Shares on such date on the principal national securities
exchange on which such Shares are listed or admitted to trading, or if such
Shares are not so listed or admitted to trading, the arithmetic mean of the per
Share closing bid price and per Share closing asked price on such date as quoted
on the National Association of Securities Dealers Automated Quotation System or
such other market in which such prices are regularly quoted, or, if there have
been no published bid or asked quotations with respect to Shares on such date,
the Fair Market Value shall be the value established by the Board in good faith
and, in the case of an Incentive Stock Option, in accordance with Section 422 of
the Code.
2.20 "Grantee" means a person to whom an Award has been granted under the
Plan.
2.21 "Incentive Stock Option" means an Option satisfying the requirements
of Section 422 of the Code and designated by the Committee as an Incentive Stock
Option.
2.22 "93 ISP" means the Tandy Corporation 1993 Incentive Stock Plan.
2.23 "Nonqualified Stock Option" means an Option which is not an Incentive
Stock Option.
2.24 "Option" means a Employee Option, a Director Option, or either or both
of them.
2.25 "Optionee" means a person to whom an Option has been granted under the
Plan.
2.26 "Parent" means any corporation which is a parent corporation (within
the meaning of Section 424(e) of the Code) with respect to the Company.
2.27 "Performance Awards" means Performance Units, Performance Shares or
either or both of them.
2.28 "Performance Cycle" means the time period specified by the Committee
at the time a Performance Award is granted during which the performance of the
Company, a Subsidiary or a Division will be measured.
2.29 "Performance Shares" means Shares issued or transferred to an Eligible
Employee under Section 10.
2.30 "Performance Unit" means Performance Units granted to an Eligible
Employee under Section 10.
2.31 "Plan or 97 ISP" means the Tandy Corporation 1997 Incentive Stock
Plan.
2.32 "Restricted Stock" means Shares issued or transferred to an Eligible
Employee pursuant to Section 9.
2.33 "Retirement" means termination of service as a Director under
circumstances entitling the Director to a retirement benefit under the Company's
Directors Special Compensation Plan.
2.34 "Stock Appreciation Right" means a right to receive all or some
portion of the increase in the value of the Shares as provided in Section 8.
2.35 "Shares" means the common stock, par value $1.00 per share, of the
Company.
2.36 "Subsidiary" means any corporation which is a subsidiary corporation
(within the meaning of Section 424(f) of the Code) with respect to the Company.
2.37 "Successor Corporation" means a corporation, or a parent or subsidiary
thereof within the meaning of Section 424(a) of the Code, which issues or
assumes a stock option in a transaction to which Section 424(a) of the Code
applies.
2.38 "Ten-Percent Stockholder" means an Eligible Employee, who, at the time
an Incentive Stock Option is to be granted to him or her, owns (within the
meaning of Section 422(b)(6) of the Code) stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company,
or of a Parent or a Subsidiary.
3. Administration.
3.1 The Plan shall be administered by the Committee which shall hold
meetings at such times as may be necessary for the proper administration of the
Plan. No member of the Committee shall be liable for any action, failure to act,
determination or interpretation made in good faith with respect to this Plan or
any transaction hereunder, except for liability arising from his or her own
willful misfeasance, gross negligence or reckless disregard of his or her
duties. The Company hereby agrees to indemnify each member of the Committee for
all costs and expenses and, to the extent permitted by applicable law, any
liability incurred in connection with defending against, responding to,
negotiation for the settlement of or otherwise dealing with any claim, cause of
action or dispute of any kind arising in connection with any actions in
administering this Plan or in authorizing or denying authorization to any
transaction hereunder.
3.2 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time to:
(a) determine those individuals to whom Employee Options shall be
granted under the Plan and the number of Incentive Stock Options and/or
Nonqualified Stock Options to be granted to each Eligible Employee and to
prescribe the terms and conditions (which need not be identical) of each
Employee Option, including the purchase price per Share subject to each
Employee Option, and make any amendment or modification to any Agreement
consistent with the terms of the Plan; and
(b) select those Eligible Employees to whom Awards shall be granted
under the Plan and to determine the number of Stock Appreciation Rights,
Performance Units, Performance Shares, and/or Shares of Restricted Stock to
be granted pursuant to each Award, the terms and conditions of each Award,
including the restrictions or performance criteria relating to such
Performance Units or Performance Shares, the maximum value of each
Performance Unit and Performance Share and make any amendment or
modification to any Agreement consistent with the terms of the Plan.
(c) grant, notwithstanding the provisions of Section 9.4 to the
contrary, Shares to Eligible Employees, that are the subject of Options and
Awards that in the aggregate do not exceed 500,000 upon such terms and
conditions as may be determined by the Committee in its sole and absolute
discretion.
3.3 Subject to the express terms and conditions set forth herein, the
Committee shall have the power from time to time:
(a) to construe and interpret the Plan and the Options and Awards
granted thereunder and to establish, amend and revoke rules and regulations
for the administration of the Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to the
extent it shall deem necessary or advisable to make the Plan fully
effective, and all decisions and determinations by the Committee in the
exercise of this power shall be final, binding and conclusive upon the
Company, its Subsidiaries, the Optionees and Grantees and all other persons
having any interest therein;
(b) to determine the duration and purposes for leaves of absence which
may be granted to an Optionee or Grantee on an individual basis without
constituting a termination of employment or service for purposes of the
Plan;
(c) to exercise its discretion with respect to the powers and rights
granted to it as set forth in the Plan; and
(d) generally, to exercise such powers and to perform such acts as are
deemed necessary or advisable to promote the best interests of the Company
with respect to the Plan.
3.4 During any calendar year, (i) no Eligible Employee may be granted
Options and Awards (other than Awards described in clause (ii) below) in the
aggregate in respect of more than 500,000 Shares and (ii) the maximum dollar
amount of cash or the Fair Market Value of Shares that any Eligible Employee may
receive in any calendar year in respect of Performance Units denominated in
dollars may not exceed $1,500,000.
4. Stock Subject to the Plan.
4.1 The maximum number of Shares that may be made the subject of Options
and Awards granted under the Plan is 5,500,000. Upon a Change in Capitalization
the maximum number of Shares shall be adjusted in number and kind pursuant to
Section 12. The Company shall reserve for the purposes of the Plan, out of its
authorized but unissued Shares or out of Shares held in the Company's treasury,
or partly out of each, such number of Shares as shall be determined by the
Board.
4.2 Upon the granting of an Option or an Award, the number of Shares
available under Section 4.1 for the granting of further Options and Awards shall
be reduced as follows:
(a) In connection with the granting of an Option or an Award (other
than the granting of a Performance Unit denominated in dollars), the number
of Shares shall be reduced by the number of Shares in respect of which the
Option or Award is granted or denominated.
(b) In connection with the granting of a Performance Unit denominated
in dollars, the number of Shares shall be reduced by an amount equal to the
quotient of (i) the dollar amount in which the Performance Unit is
denominated, divided by (ii) the Fair Market Value of a Share on the date
the Performance Unit is granted.
4.3 Whenever any outstanding Option or Award or portion thereof expires, is
canceled or is otherwise terminated for any reason without having been exercised
or payment having been made in respect of the entire Option or Award, the Shares
allocable to the expired, canceled or otherwise terminated portion of the Option
or Award may again be the subject of Options or Awards granted hereunder.
5. Director Plans.
5A. Option Grants to Eligible Directors.
5A.1 Annual Grant. Subject to the provisions of Section 5C. hereof,
Director Options shall be granted to each Eligible Director on the first trading
day of September of each year the Plan is in effect and Director options under
the 93 ISP are no longer available for grant to such Directors or any one of
them, as the case maybe. Each Director Option granted shall be in respect of
8,000 Shares. The purchase price of each Director Option shall be as provided in
Section 5A.3 and such Options shall be evidenced by an Agreement containing such
other terms and conditions not inconsistent with the provisions of this Plan as
determined by the Board; provided, however, that such terms shall not vary the
timing of awards of Director Options, including provisions dealing with
forfeiture or termination of such Director Options, and further such terms may
not provide for a modification of a Director Option and the grant of new
Director Option in substitution for them which results in a Purchase Price (as
defined in Section 5A.3 hereof) that is lower than the Purchase Price of the
originally issued Director Option until authorized by the shareholders of the
Corporation.
5A.2 One Time Grant. Subject to the Provisions of Section 5C. hereof,
each newly appointed or elected Eligible Director who has not previously
received a one-time grant under the 93 ISP or hereunder, shall be granted an
option on the date the Eligible Director attends his or her first Company Board
meeting. Each Director Option granted under this section shall be in respect of
10,000 Shares. The purchase price of each Director Option shall be as provided
in Section 5A.3 and such Options shall be evidenced by an Agreement containing
such other terms and conditions not inconsistent with the provisions of this
Plan as determined by the Board; provided, however, that such terms shall not
vary the timing of awards of Director Options, including provisions dealing with
forfeiture or termination of such Director Options.
5A.3 Purchase Price. The purchase price for Shares under each Director
Option shall be equal to 100% of the Fair Market Value of such Shares on the
trading date immediately preceding the date of grant.
5A.4 Vesting. Subject to Section 7.4, each Director Option shall become
exercisable with respect to one third (1/3) of the Shares subject thereto
effective as of each of the first, second and third annual anniversaries of the
grant date; provided, however, that the Optionee continues to serve as a
Director as of such dates. Notwithstanding the foregoing, if a Director's
service terminates by reason of his death, Disability or Retirement, all
Director Options then held by the Director shall be fully vested.
5A.5 Duration. Each Director Option shall terminate on the date which
is the tenth annual anniversary of the grant date, unless terminated earlier as
follows:
(a) If an Optionee's service as a Director terminates for any
reason other than Retirement, Disability, death or Cause, the Optionee may, for
a period of three (3) months after such termination, exercise his or her Option
to the extent, and only to the extent, that such Option or portion thereof was
vested and exercisable as of the date the Optionee's service as a Director
terminated, after which time the Option shall automatically terminate in full.
(b) If an Optionee's service as a Director terminates by
reason of the Optionee's Retirement or by resignation or removal from the Board
due to Disability, the Optionee may, for a period of three (3) years after such
termination, exercise his or her Option to the extent, and only to the extent
that such Option or portion thereof was vested and exercisable, as of the date
the Optionee's service as a Director terminated, after which time the Option
shall automatically terminate in full.
(c) If an Optionee's service as a Director terminates for
Cause, the Option granted to the Optionee hereunder shall immediately terminate
in full and no rights thereunder may be exercised.
(d) If an Optionee dies while a Director or within three (3)
months after termination of service as a Director as described in clause (a) of
this Section 5A.5, or within three (3) years after termination of service as a
Director as described in clause (b) of this Section 5A.5, the Option granted to
the Optionee may be exercised at any time within 12 months after the Optionee's
death by the person or persons to whom such rights under the Option shall pass
by will, or by the laws of descent or distribution, after which time the Option
shall terminate in full.
5B. Stock Purchase for Director Retainer Fees.
5B.1 Election to Participate.
(a) Initial Year Election. Each Eligible Director may
participate in this Section 5B by filing an election to participate with the
Company Secretary (the "Initial Year Election") at any time following his or her
appointment or election. An Initial Year Election shall become effective with
respect to the Eligible Director's retainer fees payable to him or her under the
Eligible Director compensation plan in respect of each calendar month commencing
with the first calendar month commencing after the receipt of the Initial Year
Election by the Company Secretary and ending the subsequent May 31. An Eligible
Director may, pursuant to an Initial Year Election, participate in this Section
5B only at either a 50% or 100% level and may not change his or her level of
participation except as provided in Section 5B.1 (b) below.
(b) Annual Election. Each Eligible Director may, prior to May
1 of any year, elect to participate (or cease to participate ) or change his or
her level of participation in this Section 5B (an "Annual Election"). An Annual
Election shall become effective with respect to the Eligible Director's retainer
fees payable to him or her under the Eligible Director compensation plan in
respect of the year commencing on June 1 next subsequent to the receipt of the
Annual Election by the Company Secretary and shall continue for subsequent years
unless changed pursuant to this Section 5B.1 (b). An Eligible Director may,
pursuant to an Annual Election, participate in this Section 5B only at either a
50% or 100% level and may not change his or her level of participation except as
provided in this Section 5B.1(b).
5B.2 Payment in Stock.
(a) For the period commencing on the effective date of a
Eligible Director's Initial Year Election through the next subsequent May 31,
(i) Shares will be issued to each Eligible Director participating at the 100%
level having a Fair Market Value (as of the first trading day immediately
preceding the date of issuance) equal to the Eligible Director's annual retainer
divided by twelve (12), then multiplied by the number of calendar months from
the effective date of the Initial Year Election through the next subsequent May
31; and (ii) Shares will be issued to each Eligible Director participating at
the 50% level according to the calculation in clause (i) of this Section 5B.2
(a) but reduced by one-half. Shares will be issued as of the effective date of
the Initial Year Election.
(b) For each year commencing on June 1 in respect of which an
Eligible Director has elected to participate in this Section 5B pursuant to an
Annual Election, (i) Shares will be issued to each Eligible Director
participating at the 100% level having a Fair Market Value (as of the first
trading day immediately preceding the date of issuance) equal to the Eligible
Director's annual retainer; and (ii) Shares will be issued to each Eligible
Director participating in this section 5B at the 50% level according to the
calculation in clause (i) of this Section 5B.2(b) but reduced by one-half.
Shares will be issued as of June 1.
(c) The issuance of Shares to an Eligible director
participating in this Section 5B shall represent payment in advance of, and
shall be in lieu of, 50% or 100%, as applicable, of the Eligible Director's
annual retainer for the period in respect of which the Initial Year Election or
the Annual Election is in effect.
5B.3 Distribution. Shares will be distributed to the Eligible Director
as soon as practicable after issuance. No fractional Share will be issued to any
Eligible Director. Any amount not used for the acquisition of a Share will be
paid to the Eligible Director in cash.
5C. Director Option Grants under the 93 ISP and the Plan
5C.1 No Duplication. Notwithstanding any provision in this Plan to the
contrary, no Director Option shall be granted to any Eligible Director pursuant
to Section 5A of this Plan on any day if such Director is granted an option
pursuant to Section 5A of the 93 ISP on such day. In addition, no Shares shall
be issued pursuant to Section 5B of this Plan in respect of an Eligible
Director's retainer fees if Shares are or will be issued pursuant to Section 5B
of the 93 ISP in respect of such retainer fees.
6. Option Grants for Eligible Employees.
6.1 Authority of Committee. Subject to the provisions of the Plan and
to Section 4.1 above, the Committee shall have full and final authority to
select those Eligible Employees who will receive Options (each an "Employee
Option"), the terms and conditions of which shall be set forth in an Agreement;
provided, however, that no person shall receive any Incentive Stock Options
unless he or she is an employee of the Company, a Parent or a Subsidiary at the
time the Incentive Stock Option is granted.
6.2 Purchase Price. The purchase price or the manner in which the
purchase price is to be determined for Shares under each Employee Option shall
be determined by the Committee and set forth in the Agreement; provided,
however, that the purchase price per Share under each Incentive Stock Option
shall not be less than 100% of the Fair Market Value of a Share on the date the
Incentive Stock Option is granted (110% in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder) and the purchase price per Share under
each Nonqualified Stock Option shall not be less than the Fair Market Value of a
Share on the date the Nonqualified Stock Option is granted.
6.3 Maximum Duration. Employee Options granted hereunder shall be for
such term as the Committee shall determine, provided that an Incentive Stock
Option shall not be exercisable after the expiration of ten (10) years from the
date it is granted (five (5) years in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder) and a Nonqualified Stock Option shall not
be exercisable after the expiration of ten (10) years from the date it is
granted. The Committee may, subsequent to the granting of any Employee Option,
extend the term thereof but in no event shall the term as so extended exceed the
maximum term provided for in the preceding sentence.
6.4 Vesting. Subject to Section 7.4 hereof, each Employee Option shall
become exercisable in such installments (which need not be equal) and at such
times as may be designated by the Committee and set forth in the Agreement. To
the extent not exercised, installments shall accumulate and be exercisable, in
whole or in part, at any time after becoming exercisable, but not later than the
date the Employee Option expires. The Committee may accelerate the
exercisability of any Option or portion thereof at any time.
6.5 Modification or Substitution. The Committee may, in its discretion,
modify outstanding Employee Options or accept the surrender of outstanding
Employee Options (to the extent not exercised) and grant new Options in
substitution for them. Notwithstanding the foregoing, (i) no modification of an
Employee Option shall adversely alter or impair any rights or obligations under
the Employee Option without the Optionee's consent, and (ii) no modification or
surrender of an outstanding option and the grant of new options in substitution
for them which results in a purchase price (as defined in Section 6.2 hereof)
that is lower than the purchase price of the originally issued Option shall be
effective until authorized by the shareholders of the Corporation.
7. Terms and Conditions Applicable to All Options.
7.1 Transferability. Unless otherwise provided by the Committee, no
Option granted hereunder shall be transferable by the Optionee to whom granted
otherwise than by will or the laws of descent and distribution, and an Option
may be exercised during the lifetime of such Optionee only by the Optionee or
his or her guardian or legal representative. The terms of such Option shall be
final, binding and conclusive upon the beneficiaries, executors, administrators,
heirs and successors of the Optionee.
7.2 Method of Exercise. The exercise of an Option shall be made only by
a written notice delivered in person or by mail to the Secretary of the Company
at the Company's principal executive office, specifying the number of Shares to
be purchased and accompanied by payment therefor and otherwise in accordance
with the Agreement pursuant to which the Option was granted. The purchase price
for any Shares purchased pursuant to the exercise of an Option shall be paid in
full upon such exercise by any one or a combination of the following: (i) cash
or (ii) transferring Shares to the Company upon such terms and conditions as
determined by the Committee. Notwithstanding the foregoing, the Committee shall
have discretion to determine at the time of grant of each Employee Option or at
any later date (up to and including the date of exercise) the form of payment
acceptable in respect of the exercise of such Employee Option. The written
notice pursuant to this Section 7.2 may also provide instructions from the
Optionee to the Company that upon receipt of the purchase price in cash from the
Optionee's broker or dealer, that has been approved by the Company, designated
as such on the written notice, in payment for any Shares purchased pursuant to
the exercise of an Option, the Company shall issue such Shares directly to the
designated broker or dealer that has been approved by the Company. Any Shares
transferred to the Company as payment of the purchase price under an Option
shall be valued at their Fair Market Value on the day preceding the date of
exercise of such Option. If requested by the Committee, the Optionee shall
deliver the Agreement evidencing the Option to the Secretary of the Company who
shall endorse thereon a notation of such exercise and return such Agreement to
the Optionee. No fractional Shares (or cash in lieu thereof) shall be issued
upon exercise of an Option and the number of Shares that may be purchased upon
exercise shall be rounded to the nearest number of whole Shares.
7.3 Rights of Optionees. No Optionee shall be deemed for any purpose to
be the owner of any Shares subject to any Option unless and until (i) the Option
shall have been exercised pursuant to the terms thereof, (ii) the Company shall
have issued and delivered the Shares to the Optionee or his designated broker or
dealer that has been approved by the Company and (iii) the Optionee's name or
the name of his designated broker or dealer that has been approved by the
Company shall have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend and other
ownership rights with respect to such Shares.
7.4 Effect of Change in Control. Notwithstanding anything contained in
the Plan to the contrary, unless an Agreement evidencing an Option provides
otherwise, in the event of a Change in control the Option shall become
immediately and fully exercisable. In addition, an Agreement evidencing an
Option may provide that the Optionee will be permitted to surrender for
cancellation within sixty (60) days after such Change in Control, the Option or
portion of the Option to the extent not yet exercised and the Optionee will be
entitled to receive a cash payment in an amount equal to the excess, if any, of
(x) (A) in the case of a Nonqualified Stock Option, the greater of (1) the Fair
Market Value, on the date preceding the date of surrender, of the Shares subject
to the Option or portion thereof surrendered or (2) the Adjusted Fair Market
Value of the Shares subject to the Option or portion thereof surrendered or (B)
in the case of an Incentive Stock Option, the Fair Market Value, on the date
preceding the date of surrender, of the Shares subject to the Option or portion
thereof surrendered, over (y) the aggregate purchase price for such Shares under
the Option or portion thereof surrendered. In the event an Optionee's employment
with, or service as a Director of, the Company terminates following a Change in
Control, each Option held by the Optionee that was exercisable as of the date of
termination of the Optionee's employment or service shall remain exercisable for
a period ending not before the earlier of (A) the first annual anniversary of
the termination of the Optionee's employment or service or (B) the expiration of
the stated term of the Option.
8. Stock Appreciation Rights. The Committee may, in its discretion,
either alone or in connection with the grant of an Option, grant to Eligible
Employees, Stock Appreciation Rights in accordance with the Plan and the terms
and conditions of which shall be set forth in an Agreement. If granted in
connection with an Option, a Stock Appreciation Right shall cover the same
Shares covered by the Option (or such lesser number of Shares as the Committee
may determine) and shall, except as provided in this Section 8, be subject to
the same terms and conditions as the related Option.
8.1 Time of Grant. A Stock Appreciation Right may be granted (i) at any
time if unrelated to an Option, or (ii) if related to an Option, either at the
time of grant, or at any time thereafter during the term of the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. Subject to Section 8.6, a Stock Appreciation Right
granted in connection with an Option shall be exercisable at such time or
times and only to the extent that the related Option is exercisable, and
will not be transferable except to the extent the related Option may be
transferable. A Stock Appreciation Right granted in connection with an
Incentive Stock Option shall be exercisable only if the Fair Market Value
of a Share on the date of exercise exceeds the purchase price specified in
the related Incentive Stock Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock Appreciation Right
related to an Option, the Grantee shall be entitled to receive an amount
determined by multiplying (A) the excess of the Fair Market Value of a
Share on the date preceding the date of exercise of such Stock Appreciation
Right over the per Share purchase price under the related Option, by (B)
the number of Shares as to which such Stock Appreciation Right is being
exercised. Notwithstanding the foregoing, the Committee may limit in any
manner the amount payable with respect to any Stock Appreciation Right by
including such a limit in the Agreement evidencing the Stock Appreciation
Right at the time it is granted.
(c) Treatment of Related Options and Stock Appreciation Rights Upon
Exercise. Upon the exercise of a Stock Appreciation Right granted in
connection with an Option, the Option shall be canceled to the extent of
the number of Shares as to which the Stock Appreciation Right is exercised,
and upon the exercise of an Option granted in connection with a Stock
Appreciation Right or the surrender of such Option, the Stock Appreciation
Right shall be canceled to the extent of the number of Shares as to which
the Option is exercised or surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The Committee may
grant to Eligible Employees Stock Appreciation Rights unrelated to Options.
Stock Appreciation Rights unrelated to Options shall contain such terms and
conditions as to exercisability, vesting and duration as the Committee shall
determine, but in no event shall they have a term of greater than ten (10)
years. Upon exercise of a Stock Appreciation Right unrelated to an Option, the
Grantee shall be entitled to receive an amount determined by multiplying (A) the
excess of the Fair Market Value of a Share on the date preceding the date of
exercise of such Stock Appreciation Right over the Fair Market Value of a Share
on the date the Stock Appreciation Right was granted (the "Base Price") , by (B)
the number of Shares as to which the Stock Appreciation Right is being
exercised. Notwithstanding the foregoing, the Committee may limit in any manner
the amount payable with respect to any Stock Appreciation Right by including
such a limit in the Agreement evidencing the Stock Appreciation Right at the
time it is granted.
8.4 Method of Exercise. Stock Appreciation Rights shall be exercised by
a Grantee only by a written notice delivered in person or by mail to the
Corporate Secretary or the President of the Company at the Company's principal
executive office, specifying the number of Shares with respect to which the
Stock Appreciation Right is being exercised. If requested by the Committee, the
Grantee shall deliver the Agreement evidencing the Stock Appreciation Right
being exercised and the Agreement evidencing any related Option to the Corporate
Secretary or President of the Company who shall endorse thereon a notation of
such exercise and return such Agreement to the Grantee.
8.5 Form of Payment. Payment of the amount determined under Sections
8.2(b) or 8.3 may be made in the discretion of the Committee, solely in whole
Shares in a number determined at their Fair Market Value on the date preceding
the date of exercise of the Stock Appreciation Right, or solely in cash, or in a
combination of cash and Shares. If the Committee decides to make full payment in
Shares and the amount payable results in a fractional Share, payment for the
fractional Share will be made in cash.
8.6 Modification or Substitution. Subject to the terms of the Plan, the
Committee may modify outstanding Awards of Stock Appreciation Rights or accept
the surrender of outstanding Awards of Stock Appreciation Rights (to the extent
not exercised) and grant new Awards in substitution for them. Notwithstanding
the foregoing, (i) no modification of an Award shall adversely alter or impair
any rights or obligations under the Agreement without the Grantee's consent, and
(ii) no modification or surrender of an outstanding Award of Stock Appreciation
Rights and the grant of new Awards in substitution for them, which results (in
the case of Stock Appreciation Right related to Option) in a purchase price that
is lower than the purchase price specified in the related Incentive Stock Option
Agreement, and (in the case of Stock Appreciation Rights unrelated to Options)
results in a lower Base Price of a Share than that which existed on the date the
Stock Appreciation Right unrelated to Options was granted shall be effective
until authorized by the shareholders of the Corporation.
8.7 Effect of Change in Control. Notwithstanding anything contained in
this Plan to the contrary, unless an Agreement evidencing a Stock Appreciation
Right provides otherwise, in the event of a Change in Control, all Stock
Appreciation Rights shall become immediately and fully exercisable.
Notwithstanding Sections 8.3 and 8.5, an Agreement evidencing a Stock
Appreciation Right may provide that upon the exercise of a Stock Appreciation
Right unrelated to an Option or any portion thereof during the sixty (60) day
period following a Change in Control, the amount payable shall be in cash and
shall be an amount equal to the excess, if any, of (A) the greater of (x) the
Fair Market Value, on the date preceding the date of exercise, of the Shares
subject to Stock Appreciation Right or portion thereof exercised and (y) the
Adjusted Fair Market Value, on the date preceding the date of exercise, of the
Shares over (B) the aggregate Fair Market Value, on the date the Stock
Appreciation Right was granted, of the Shares subject to the Stock Appreciation
Right or portion thereof exercised. In the event a Grantee's employment with the
Company terminates following a Change in Control, each Stock Appreciation Right
held by the Grantee that was exercisable as of the date of termination of the
Grantee's employment shall remain exercisable for a period ending not before the
earlier of the first annual anniversary of (A) the termination of the Grantee's
employment or (B) the expiration of the stated term of the Stock Appreciation
Right.
9. Restricted Stock.
9.1 Grant. The Committee may grant to Eligible Employees and Directors,
Awards of Restricted Stock, and may issue Shares of Restricted Stock in payment
in respect of vested Performance Units (as hereinafter provided in Section
10.2), which shall be evidenced by an Agreement between the Company and the
Grantee. Each Agreement shall contain such restrictions, terms and conditions as
the Committee may, in its discretion, determine in accordance with this Section
9, and such Agreements may require that an appropriate legend be placed on Share
certificates. Awards of Restricted Stock shall be subject to the terms and
provisions set forth below in this Section 9.
9.2 Rights of Grantee. Shares of Restricted Stock granted pursuant to
an Award hereunder may either be issued in the name of the Grantee as soon as
reasonably practicable after the Award is granted or credited in a separate book
account in the Grantee's name maintained for that purpose provided that the
Grantee has executed an Agreement evidencing the Award, and, in the discretion
of the Committee, appropriate blank stock powers, an escrow agreement and any
other documents which the Committee may require as a condition to the issuance
of such Shares. If a Grantee shall fail to execute the Agreement evidencing a
Restricted Stock Award, and, in the discretion of the Committee, appropriate
blank stock powers, an escrow agreement and any other documents which the
Committee may require within the time period prescribed by the Committee at the
time the Award is granted, the Award shall be null and void. At the discretion
of the Committee, Shares issued in connection with a Restricted Stock Award
shall be deposited together with the stock powers with an escrow agent (which
may be the Company) designated by the Committee. The Committee shall have the
full and final authority to determine, upon delivery of the Shares to the escrow
agent, or the establishment of a book account in the name of the Grantee, as the
case may be, whether or not the Grantee shall have all of the rights of a
stockholder with respect to such Shares, including the right to vote the Shares
and to receive all dividends or other distributions paid or made with respect to
the Shares.
9.3 Transferability. Unless otherwise provided by the Committee, until
any restrictions upon the Shares of Restricted Stock awarded to a Grantee shall
have lapsed in the manner set forth in Section 9.4, such Shares shall not be
sold, transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated, nor shall they be delivered to the Grantee.
9.4 Lapse of Restrictions.
(a) Generally. During the period of three (3) years commencing
on the date of grant of the Shares of Restricted Stock, or such longer period as
may be set by the Committee, restrictions upon the shares shall not lapse.
Within these limits the Committee may, in its sole discretion, provide for the
lapse of such restrictions in installments and may also accelerate such
restrictions (for any period not less that one (1) year) in whole or in part
based upon performance factors as the Committee may determine, in its sole
discretion.
(b) Effect of Change in Control or a Sale or Disposition of a
Subsidiary or Division. Notwithstanding anything contained in the Plan, unless
the Agreement evidencing the Award provides to the contrary, in the event of a
Change in Control, all restrictions upon any Shares of Restricted Stock shall
lapse immediately and all such Shares shall become fully vested in the Grantee.
In the event of the sale or other disposition of substantially all of the stock
or assets of a Subsidiary or a Division, the Committee shall have the discretion
to determine whether all restrictions upon any Shares of Restricted Stock (held
by a Grantee employed by such Division or Subsidiary) shall lapse immediately
and that all such Shares shall become fully vested in the Grantee.
(c) Employment, Disability, Retirement or Death. Restrictions
upon Shares of Restricted Stock awarded hereunder shall lapse at such time or
times and on such terms and conditions as the Committee may determine in
connection with the initial employment, Disability, retirement, or death of the
Grantee.
9.5 Modification or Substitution. Subject to the terms of the Plan, the
Committee may modify outstanding Awards of Restricted Stock or accept the
surrender of outstanding Shares of Restricted Stock (to the extent the
restrictions on such Shares have not yet lapsed) and grant new Awards in
substitution for them. Notwithstanding the foregoing, no modification of an
Award shall adversely alter or impair any rights or obligations under the
Agreement without the Grantee's consent.
9.6 Treatment of Dividends. At the time the Award of Shares of
Restricted Stock is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on such Shares by the Company shall be (i) deferred until the
lapsing of the restrictions imposed upon such Shares and (ii) held by the
Company for the account of the Grantee until such time. In the event that
dividends are to be deferred, the Committee shall determine whether such
dividends are to be reinvested in shares of Stock (which shall be held as
additional Shares of Restricted Stock) or held in cash. If deferred dividends
are to be held in cash, there may be credited at the end of each year (or
portion thereof) interest on the amount of the account at the beginning of the
year at a rate per annum as the Committee, in its discretion, may determine.
Payment of deferred dividends in respect of Shares of Restricted Stock (whether
held in cash or as additional Shares of Restricted Stock), together with
interest accrued thereon, if any, shall be made upon the lapsing of restrictions
imposed on the Shares in respect of which deferred dividends were paid, and any
dividends deferred (together with any interest accrued thereon) in respect of
any Shares of Restricted Stock shall be forfeited upon the forfeiture of such
Shares.
9.7 Delivery of Shares. Upon the lapse of the restrictions on Shares of
Restricted Stock, the Committee shall cause a stock certificate to be delivered
to the Grantee with respect to such Shares, free of all restrictions hereunder.
10. Performance Awards.
10.1 (a) Performance Objectives. Performance objectives for Performance
Awards shall be expressed in terms of (i) earnings per Share, (ii) pre-tax
profits, (iii) net earnings or net worth, (iv) return on equity or assets, (v)
price of Shares, or (vi) any combination of the foregoing, for the Company,
Subsidiary or Division thereof, as may be applicable. Performance objectives may
be in respect of the performance of the Company and its Subsidiaries (which may
be on a consolidated basis), a Subsidiary or a Division. Performance objectives
may be absolute or relative and may be expressed in terms of a progression
within a specified range. The performance objectives with respect to a
Performance Cycle shall be established in writing by the Committee by the
earlier of (i) the date on which a quarter of the Performance Cycle has elapsed
or (ii) the date which is ninety (90) days after the commencement of the
Performance Cycle, and in any event while the performance relating to the
performance objectives remains substantially uncertain.
(b) Determination of Performance. Prior to the vesting,
payment, settlement or lapsing of any restrictions with respect to any
Performance Award made to a Grantee who is subject to Section 162(m) of the
Code, the Committee shall certify in writing that the applicable performance
objectives have been satisfied.
10.2 Performance Units. The Committee, in its discretion, may grant
Awards of Performance Units to Eligible Employees, the terms and conditions of
which shall be set forth in an Agreement between the Company and the Grantee.
Performance Units may be denominated in Shares or a specified dollar amount and,
contingent upon the attainment of specified performance objectives within the
Performance Cycle, represent the right to receive payment as provided in Section
10.2(b) of (i) in the case of Share-denominated Performance Units, the Fair
Market Value of a Share on the date the Performance Unit was granted, the date
the Performance Unit became vested or any other date specified by the Committee,
(ii) in the case of dollar-denominated Performance Units, the specified dollar
amount or (iii) a percentage (which may be more than 100%) of the amount
described in clause (i) or (ii) depending on the level of performance objective
attainment; provided, however, that the Committee may at the time a Performance
Unit is granted, specify a maximum amount payable in respect of a vested
Performance Unit. Each Agreement shall specify the number of the Performance
Units to which it relates, the performance objectives which must be satisfied in
order for the Performance Units to vest and the Performance Cycle within which
such objectives must be satisfied.
(a) Vesting and Forfeiture. Subject to Sections 10.1 (b) and
10.4, Grantee shall become vested with respect to the Performance Units to the
extent that the performance objectives set forth in the Agreement are satisfied
for the Performance Cycle.
(b) Payment of Awards. Subject to Section 10.1 (b), payment to
Grantees in respect of vested Performance Units shall be made within sixty (60)
days after the last day of the Performance Cycle to which such Award relates
unless the Agreement evidencing the Award provides for the deferral of payment,
in which event the terms and conditions of the deferral shall be set forth in
the Agreement. Subject to Section 10.4, such payments may be made entirely in
Shares valued at their Fair Market Value as of the last day of the applicable
Performance Cycle or such other date specified by the Committee, entirely in
cash, or in such combination of Shares and cash as the Committee in its
discretion, shall determine at any time prior to such payment; provided,
however, that if the Committee in its discretion determines to make such payment
entirely or partially in Shares of Restricted Stock, the Committee must
determine the extent to which such payment will be in Shares of Restricted Stock
and the terms of such Restricted Stock at the time the Award is granted.
10.3 Performance Shares. The Committee, in its discretion, may grant
Awards of Performance Shares to Eligible Employees, the terms and conditions of
which shall be set forth in an Agreement between the Company and the Grantee.
Each Agreement may require that an appropriate legend be placed on Share
certificates. Awards of Performance Shares shall be subject to the following
terms and provisions:
(a) Rights of Grantee. The Committee shall provide at the time
an Award of Performance Shares is made, either the time or times at which the
actual Shares represented by such Award shall be issued in the name of the
Grantee or whether a separate book account in the name of the Grantee should be
maintained and credited with the Performance Shares represented by such Award;
provided, however, that no Performance Shares shall be issued or credited to any
such book account until the Grantee has executed an Agreement evidencing the
Award, and, in the discretion of the Committee, the appropriate blank stock
powers, an escrow agreement and any other documents which the Committee may
require as a condition to the issuance of such Performance Shares. If a Grantee
shall fail to execute the Agreement evidencing an Award of Performance Shares,
and, in the discretion of the Committee, the appropriate blank stock powers, an
escrow agreement and any other documents which the Committee may require within
the time period prescribed by the Committee at the time the Award is granted,
the Award shall be null and void. At the discretion of the Committee, Shares
issued in connection with an Award of Performance Shares shall be deposited
together with the stock powers with an escrow agent (which may be the Company)
designated by the Committee. Except as restricted by the terms of the Agreement,
upon delivery of the Shares to the escrow agent, or the establishment of a book
account in the name of Grantee, as the case may be, the Grantee shall have, in
the discretion of the Committee, all of the rights of a stockholder with respect
to such Shares, including the right to vote the Shares and to receive all
dividends or other distributions paid or made with respect to the Shares.
(b) Transferability. Unless otherwise provided by the
Committee until any restrictions upon the Performance Shares awarded to a
Grantee shall have lapsed in the manner set forth in Sections 10.3(c) or 10.4,
such Performance Shares shall not be sold, transferred or otherwise disposed of
and shall not be pledged or otherwise hypothecated, nor shall they be delivered
to the Grantee. The Committee may also impose such other restrictions and
conditions on the Performance Shares, if any, as it deems appropriate.
(c) Lapse of Restrictions. Subject to Section 10.4,
restrictions upon Performance Shares awarded hereunder shall lapse and such
Performance Shares shall become vested at such time or times and on such terms,
conditions and satisfaction of performance objectives as the Committee may, in
its discretion, determine at the time an Award is granted.
(d) Treatment of Dividends. At the time the Award of
Performance Shares is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on actual Shares represented by such Award which have been
issued by the Company to the Grantee shall be (i) deferred until the lapsing of
the restrictions imposed upon such Performance Shares and (ii) held by the
Company for the account of the Grantee until such time. In the event that
dividends are to be deferred, the Committee shall determine whether such
dividends are to be reinvested in shares of Stock (which shall be held as
additional Performance Shares) or held in cash. If deferred dividends are to be
held in cash, there may be credited at the end of each year (or portion thereof)
interest on the amount of the account at the beginning of the year at a rate per
annum as the Committee, in its discretion, may determine. Payment of deferred
dividends in respect of Performance Shares (whether held in cash or in
additional Performance Shares), together with interest accrued thereon, if any,
shall be made upon the lapsing of restrictions imposed on the Performance Shares
in respect of which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Performance
Shares shall be forfeited upon the forfeiture of such Performance Shares.
(e) Delivery of Shares. Upon the lapse of the restrictions on
Performance Shares awarded hereunder, the Committee shall cause a stock
certificate to be delivered to the Grantee with respect to such Shares, free of
all restrictions hereunder.
10.4 Effect of Change in Control. Notwithstanding anything contained in
the Plan or any Agreement to the contrary, in the event of a Change in Control:
(a) With respect to the Performance Units, the Grantee shall
(i) become vested in a percentage of Performance Units as determined by the
Committee at the time of the Award of such Performance Units and as set forth in
the Agreement and (ii) be entitled to receive in respect of all Performance
Units which become vested as a result of a Change in Control, a cash payment
within ten (10) days after such Change in Control in an amount as determined by
the Committee at the time of the Award of such Performance Unit and as set forth
in the Agreement.
(b) With respect to the Performance Shares, all restrictions
shall lapse immediately on all or a portion of the Performance Shares as
determined by the Committee at the time of the Award of such Performance Shares
and as set forth in the Agreement.
(c) The Agreements evidencing Performance Shares and
Performance Units shall provide for the treatment of such Awards (or portions
thereof) which do not become vested as the result of a Change in Control,
including, but not limited to, provisions for the adjustment of applicable
performance objectives.
10.5 Transferability. Unless otherwise provided by the Committee no
Performance Awards shall be transferable by the Grantee otherwise than by will
or the laws of descent and distribution.
10.6 Modification or Substitution. Subject to the terms of the Plan,
the Committee may modify outstanding Performance Awards or accept the surrender
of outstanding Performance Awards and grant new Performance Awards in
substitution for them. Notwithstanding the foregoing, (i) no modification of a
Performance Award shall adversely alter or impair any rights or obligations
under the Agreement without the Grantee's consent, and (ii) no modification or
surrender of an outstanding Performance Award and grant of new Performance
Awards in substitution for them can have the effect of increasing the value to
be granted to an Eligible Employee for comparable performance unless and until
authorized by the shareholders of the Corporation.
11. Effect of a Termination of Employment. The Agreement evidencing the
grant of each Employee Option and each Award shall set forth the terms and
conditions applicable to such Employee Option or Award upon a termination or
change in the status of the employment of the Optionee or Grantee by the
Company, a Subsidiary or a Division (including a termination or change by reason
of the sale of a Subsidiary or a Division), as the Committee may, in its
discretion, determine at the time the Employee Option or Award is granted or
thereafter.
12. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to the (i)
maximum number and class of Shares or other stock or securities with respect to
which Options or Awards may be granted under the Plan, (ii) the number and class
of Shares or other stock or securities which are subject to Director Options
issuable under Section 5; and (iii) the number and class of Shares or other
stock or securities which are subject to outstanding Options or Awards granted
under the Plan, and the purchase price therefor, if applicable; and (iv) the
maximum number and class of Shares or other stock or securities with respect to
which Options or Awards may be granted to any Eligible Employee.
(b) Any such adjustment in the Shares or other stock or
securities subject to outstanding Incentive Stock Options (including any
adjustments in the purchase price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and only
to the extent otherwise permitted by Sections 422 and 424 of the Code.
(c) Any stock adjustment in the Shares or other stock or
securities subject to outstanding Director Options (including any adjustments in
the purchase price) shall be made only to the extent necessary to maintain the
proportionate interest of the Optionee and preserve, without exceeding, the
value of such Director Option.
(d) If, by reason of a Change in Capitalization, a Grantee of
an Award shall be entitled to, or an Optionee shall be entitled to exercise an
Option with respect to, new, additional or different shares of stock or
securities, such new additional or different shares shall thereupon be subject
to all of the conditions, restrictions and performance criteria which were
applicable to the Shares subject to the Award or Option, as the case may be,
prior to such Change in Capitalization.
13. Effect of Certain Transactions. Subject to Sections 7.4, 8.7,
9.4(b) and 10.4, in the event of (i) the liquidation or dissolution of the
Company or (ii) a merger or consolidation of the Company (a "Transaction"), the
Plan and the Options and Awards issued hereunder shall continue in effect in
accordance with their respective terms and each Optionee and Grantee shall be
entitled to receive in respect of each Share subject to any outstanding Options
or Awards, as the case may be, upon exercise of any Option or payment or
transfer in respect of any Award, the same number and kind of stock, securities,
cash, property, or other consideration that each holder of a Share was entitled
to receive in the Transaction in respect of a Share.
14. Termination and Amendment of the Plan. The Plan shall terminate on
the day preceding the tenth annual anniversary of the date of its adoption by
the Board and no Option or Award may be granted thereafter. The Board may sooner
terminate the Plan and the Board may at any time and from time to time amend,
modify or suspend the Plan; provided, however, that:
(a) No such amendment, modification, suspension or termination
shall impair or adversely alter any Options or Awards therefore granted under
the Plan, except with the consent of the Optionee or Grantee, nor shall any
amendment, modification, suspension or termination deprive any Optionee or
Grantee of any Shares which he or she may have acquired through or as a result
of the Plan;
(b) To the extent necessary under applicable law, no amendment
shall be effective unless approved by the stockholders of the Company in
accordance with applicable law and regulations.
(c) The provisions of Section 5 shall not be amended more
often than once every six (6) months, other than to comport with changes in the
Code, the Employee Retirement Income Security Act of 1974, as amended, or the
rules and regulations promulgated thereunder.
15. Non-Exclusivity of the Plan. The adoption of the Plan by the Board
shall not be construed as amending, modifying or rescinding any previously
approved incentive arrangements or as creating any limitations on the power of
the Board to adopt such other incentive arrangements as it may deem desirable,
including, without limitation, the granting of stock options otherwise than
under the Plan, and such arrangements may be either applicable generally or only
in specific cases.
16. Limitation of Liability. As illustrative of the limitations of
liability of the Company, but not intended to be exhaustive thereof, nothing in
the Plan shall be construed to:
(i) give any person any right to be granted an Option or Award
other than at the sole discretion of the Committee;
(ii) give any person any rights whatsoever with respect to Shares
except as specifically provided in the Plan;
(iii) limit in any way the right of the Company or any Subsidiary
to terminate the employment of any person at any time; or
(iv) be evidence of any agreement or understanding, expressed or
implied, that the Company will employ any person at any particular
rate of compensation or for any particular period of time.
17. Regulations and Other Approvals; Governing Law.
17.1 Except as to matters of federal law, this Plan and the rights of
all persons claiming hereunder shall be construed and determined in accordance
with the laws of the State of Texas without giving effect to conflict of laws
principles.
17.2 The obligation of the Company to sell or deliver Shares with
respect to Options and Awards granted under the Plan shall be subject to all
applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
17.3 The Plan is intended to comply with Rule 16b-3 promulgated under
the Exchange Act and Section 162 (m) of the Code, and the Committee shall
interpret and administer the provisions of the Plan or any Agreement in a manner
consistent therewith. Any provisions inconsistent with such Rule and Section
162(m) of the Code shall be inoperative and shall not affect the validity of the
Plan.
17.4 The Board may make such changes as may be necessary or appropriate
to comply with the rules and regulations of any government authority, or to
obtain for Eligible Employees granted Incentive Stock Options the tax benefits
under the applicable provisions of the Code and regulations promulgated
thereunder.
17.5 Each Option and Award is subject to the requirement that, if at
any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option or
Award or the issuance of Shares, no Options or Awards shall be granted or
payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions as acceptable to the Committee.
17.6 Notwithstanding anything contained in the Plan or any Agreement to
the contrary, in the event that the disposition of Shares acquired pursuant to
the Plan is not covered by a then current registration statement under the
Securities Act of 1933, as amended, and is not otherwise exempt from such
registration, such Shares shall be restricted against transfer to the extent
required by the Securities Act of 1933, as amended, and Rule 144 or other
regulations thereunder. The Committee may require any individual receiving
Shares pursuant to an Option or Award granted under the Plan, as a condition
precedent to receipt of such Shares, to represent and warrant to the Company in
writing that the Shares acquired by such individual are acquired without a view
to any distribution thereof and will not be sold or transferred other than
pursuant to an effective registration thereof under said Act or pursuant to an
exemption applicable under the Securities Act of 1933, as amended, or the rules
and regulations promulgated thereunder. The certificates evidencing any of such
Shares shall be appropriately amended to reflect their status as restricted
securities as aforesaid.
18. Pooling Transactions. Notwithstanding anything contained in the
Plan or any Agreement to the contrary, in the event of a Change in Control which
is also intended to constitute a pooling transaction under the Code, the
Committee shall take such actions, if any, as are specifically recommended by an
independent accounting firm retained by the Company to the extent reasonable
necessary in order to assure that the pooling transaction will qualify as such,
including but not limited to (i) deferring the vesting, exercise, payment,
settlement or lapsing of restrictions with respect to any Option or Award, (ii)
providing that the payment or settlement in respect of any Option or Award be
made in the form of cash, Shares or securities of a successor or acquirer of the
Company, or a combination of the foregoing, and (iii) providing for the
extension of the term of any Option or Award to the extent necessary to
accommodate the foregoing, but not beyond the maximum term permitted for any
Option or Award.
19. Miscellaneous.
19.1 Multiple Agreements. The terms of each Option or Award may differ
from other Options or Awards granted under the Plan at the same time, or at some
other time. The Committee may also grant more than one Option or Award to a
given Eligible Employee during the term of the Plan, either in addition to, or
in substitution for, one or more Options or Awards previously granted to that
Eligible Employee.
19.2 Withholding of Taxes. (a) The Company shall have the right to
deduct from any distribution of cash to any Director, Optionee or Grantee, an
amount equal to the federal, state and local income taxes and other amounts as
may be required by law to be withheld (the "Withholding Taxes") with respect to
the receipt of any retainer fee, Option or Award. If a Director, Optionee or
Grantee is to experience a taxable event in connection with the receipt of
Shares pursuant to a payment in stock, Option exercise or payment of an Award (a
"Taxable Event"), the Director, Optionee or Grantee shall pay the Withholding
Taxes to the Company prior to the issuance, or release from escrow, of such
Shares. In satisfaction of the obligation to pay Withholding Taxes to the
Company, the Director, Optionee or Grantee may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the Committee
or Company Secretary, as applicable, to have withheld a portion of the Shares
then issuable to him or her having an aggregate Fair Market Value, on the date
preceding the date of such issuance, equal to the Withholding Taxes. The
Committee may, by the adoption of rules or otherwise, (i) modify the provisions
of this Section 19.2 (other than as regards Director Options) or impose such
other restrictions or limitations on Tax Elections as may be necessary to ensure
that the Tax Elections will be exempt transactions under Section 16(b) of the
Exchange Act, and (ii) permit Tax Elections to be made at such other times and
subject to such other conditions as the Committee determines will constitute
exempt transactions under Section 16(b) of the Exchange Act.
(b) If an Optionee makes a disposition, within the meaning of
Section 424(c) of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an Incentive Stock
Option within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the date of
transfer of such Share or Shares to the Optionee pursuant to such exercise, the
Optionee shall, within ten (10) days of such disposition, notify the Company
thereof, by delivery of written notice to the Company at its principal executive
office.
(c) The Committee shall have the authority, at the time of
grant of an Employee Option or Award under the Plan or at any time thereafter,
to award tax bonuses to designated Optionees or Grantees, to be paid upon their
exercise of Employee Options or payment in respect of Awards granted hereunder.
The amount of any such payments shall be determined by the Committee. The
Committee shall have full authority in its absolute discretion to determine the
amount of any such tax bonus and the terms and conditions affecting the vesting
and payment thereof.
20. Effective Date. The effective date of the Plan shall be May 31,
1997, after the date of its adoption by the Board, and the approval by the
affirmative vote of the holders of a majority of the securities of the Company
present, or represented, and entitled to vote at a meeting of stockholders duly
held in accordance with the applicable laws of the State of Delaware within 12
months of such adoption.
April 1, 1998
(202) 639-7315
Board of Directors
Tandy Corporation
100 Throckmorton Street
Suite 1800
Fort Worth, Texas 76102
Gentlemen:
We are acting as special counsel to Tandy Corporation, a
Delaware corporation (the "Company"), in connection with the registration,
pursuant to a Registration Statement on Form S-8, of (i) 5,500,000 shares of the
Company's common stock, par value $1.00 per share ("Common Stock"), issuable to
employees, officers, consultants, advisors and non-employee directors of the
Company ("Eligible Persons") either (i) in connection with the grant of
restricted stock or a performance award or (ii) upon the exercise of options or
stock appreciation rights, which grants of restricted stock and performance
awards, options, and stock appreciation rights been or may be granted to
Eligible Persons under the Company's 1997 Incentive Stock Plan, as amended (the
"1997 Plan"). The shares of Common Stock issuable pursuant to the 1997 Plan are
referred to as the "Shares".
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records of
the Company, (iii) examined such certificates of public officials, officers or
other representatives of the Company, and other persons, and such other
documents, and (iv) reviewed such information from officers and representatives
of the Company and others as we have deemed necessary or appropriate for the
purposes of this opinion.
In all such examinations, we have assumed the legal capacity
of all natural persons executing documents (other than the capacity of officers
of the Company executing documents in such capacity), the genuineness of all
signatures on original or certified copies, and the conformity to original or
certified documents of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to the opinion expressed
herein, we have relied upon, and assumed the accuracy of, certificates and oral
or written statements and other information of or from public officials,
officers or other representatives of the Company, and other persons.
Based upon the foregoing, and subject to the limitations set
forth herein, we are of the opinion that the Shares, when issued and paid for
(with the consideration received by the Company being not less than the par
value thereof) in accordance with the Plans and any agreement applicable to such
Shares, will be validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, as currently in effect. The opinion
expressed herein is given as of the date hereof, and we undertake no obligations
to supplement this letter if any applicable laws change after the date hereof or
if we become aware of any facts that might change the opinion expressed herein
after the date hereof.
The opinion expressed herein is solely for your benefit and
may not be relied upon in any manner or for any purpose by any other person and
may not be quoted in whole or in part without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement on Form S-8 relating to the registration of the
Shares. In giving this consent we do not admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /S/ Stephen I. Glover
Stephen I. Glover
<PAGE>
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 19, 1997, except as to the
treasury stock repurchase program described in Note 11 as to which the date is
March 3, 1997, appearing on page 29 of Tandy Corporation's Annual Report on Form
10-K for the year ended December 31, 1996. We also consent to the reference to
us under the heading "Experts" in this Registration Statement.
PRICE WATERHOUSE LLP
Fort Worth, Texas
March , 1998
