As filed with the Securities and Exchange Commission on July 30, 1999.
Registration No. 333-80207
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO FORM S-4
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)
AMERILINK CORPORATION 1994 STOCK INCENTIVE PLAN
EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN
LARRY R. LINHART AND AMERILINK CORPORATION,
INCLUDING STOCK OPTION ADDENDUM
RESTRICTED STOCK AWARD AGREEMENT BETWEEN
AMERILINK CORPORATION AND WILLIAM H. LARGENT AND GEORGE MANSER
RESTRICTED STOCK AWARD AGREEMENT BETWEEN AMERILINK CORPORATION
AND JOSEPH L. GOVERN
FORM OF JOSEPH L. GOVERN STOCK OPTION AGREEMENT
(Full Title of the Plan)
M. C. Hill, Senior 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>
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<CAPTION>
Title of Securities to Amount Proposed Maximum Proposed Maximum Amount of
be Registered To be Registered( 1) Offering price per Aggregate Offering Registration Fee( 2)
share( 2) price( 2)
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C>
Common Stock, 335,000
$1 par value Preferred
Share Purchase Rights
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<FN>
(1) There is also being registered hereunder such additional undetermined
number of shares of the Registrant's Common Stock as may be required as a
result of stock dividends, stock splits, or other similar adjustments of
the Registrant's Common Stock. One Preferred Share Purchase Right
automatically trades with each share of Common Stock and is evidenced by
the certificate of Common Stock.
(2) Not applicable. All filing fees payable in connection with the
registration of these securities were paid with the initial filing with the
Securities and Exchange Commission of the Registration Statement on Form
S-4 (Registration No. 333-80207)filed on June 8, 1999 being amended by this
post-effective amendment.
</FN>
</TABLE>
INTRODUCTORY STATEMENT NOT FORMING PART OF
REGISTRATION STATEMENT
Tandy Corporation ("Tandy" or "Registrant") hereby amends its
Registration Statement on Form S-4 (Registration No. 333-80207) (the "Form S-4")
filed on June 8, 1999, by filing this Post-Effective Amendment No. 1 on Form S-8
("Post-Effective Amendment No. 1") relating to an aggregate of 335,000 shares of
Common Stock of the Registrant. The shares to be registered hereunder are
issuable by the Registrant pursuant to options or obligations to issue shares
assumed by the Registrant pursuant to an Agreement and Plan of Reorganization,
dated as of May 20, 1999 (the "Agreement"), among the Registrant, LWT, Inc. and
AmeriLink Corporation. Such options or obligations were originally granted under
(i) AmeriLink Corporation 1994 Stock Incentive Plan, as amended; (ii) Executive
Employment Agreement between Larry R. Linhart and AmeriLink Corporation,
including Stock Option Addendum; (iii) Restricted Stock Award Agreement between
AmeriLink Corporation and William H. Largent and George Manser; (iv) Restricted
Stock Award Agreement between AmeriLink Corporation and Joseph L. Govern, and
(v) Form of Joseph L. Govern Stock Option Agreement, each as amended to date
(collectively, the "Plans"). Pursuant to the Agreement, AmeriLink Corporation
was merged with and into LWT, Inc., a wholly-owned subsidiary of the Registrant
(the "Merger"). Options to purchase common stock of AmeriLink Corporation
granted under the Plans and outstanding immediately prior to the completion of
the Merger shall become options to purchase shares of the Registrant at the
effective time of the Merger and any obligations to issue shares of the common
stock of AmeriLink Corporation to any directors shall become obligations to
issue shares of the Common Stock of the Registrant.
Pursuant to its Registration Statement on Form S-4, Registrant
registered 1,083,766 shares of its Common Stock, representing the number of
shares of its Common Stock issuable in connection with the Agreement in exchange
for the outstanding shares of common stock of AmeriLink Corporation, assuming
exercise of all then outstanding options to purchase common stock of AmeriLink
Corporation. The designation of this Post-Effective Amendment No. 1 as
Registration No. 333-80207 denotes that this Post-Effective Amendment No. 1
relates only to an aggregate of 335,000 shares of Common Stock of the Registrant
issuable under the Plans listed above and that this is the first post-effective
amendment to the Form S-4.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form
S-8 will be provided to participants as specified by rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). These documents and
the documents incorporated herein by reference pursuant to Item 3 of Part II of
this Registration Statement, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act (the "Prospectus").
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 Exchange
Commission (the "Commission") pursuant to the Securities Act and the Securities
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) Annual
Report on Form 10-K for the year ended December 31, 1998; (b) Quarterly Report
on Form 10-Q for the quarter ended March 31, 1999, (c) Current Reports on Form
8-K, filed May 14, 1999, May 24, 1999 and May 25, 1999; (d) Proxy Statement
dated April 6, 1999; and (e) Registration Statement on Form 8-B dated February
26, 1968, Registration Statement on Form 8-A dated August 26, 1986, Amendment
No. 1 on Form 8 to Registration Statement on Form 8-A dated July 11, 1988 and
Amendment No. 2 on Form 8 to Registration Statement on Form 8-A dated June 27,
1990.
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
An opinion concerning the validity of the issuance of shares of Common
Stock has been passed upon for the Registrant by Mark C. Hill, Senior Vice
President, Corporate Secretary and General Counsel of the Registrant. Mr. Hill
beneficially owns or has rights to acquire under employee benefit plans, an
aggregate of less than 1% of the outstanding shares of Common Stock of the
Registrant.
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. 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
None Applicable.
Item 8. EXHIBITS
EXHIBIT NO. DESCRIPTION
3.1 Restated Certificate of Incorporation of Tandy Corporation
dated July 26, 1999 incorporated herein by reference.
3.2 Certificate of Elimination of Series C Conversion
Preferred Stock of Tandy Corporation dated July 26, 1999.
3.3 Tandy Corporation Bylaws, restated as of December 16,
1998 (filed as Exhibit 3B to Tandy's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998
and incorporated herein by reference).
4.1 Form of 1994 Stock Incentive Plan , as amended (filed as
Exhibit 10.1 to AmeriLink Corporation's registration
statement on Form S-1 file No. 33-69832 and filed as
Exhibit A to the AmeriLink Corporation's 1998 Proxy
Statement dated July 6, 1998 which was filed on July 7,
1998 and incorporated herein by reference).
4.2 Executive Employment Agreement between Larry R. Linhart
and AmeriLink Corporation including Stock Option Addendum
(filed as Exhibit 10.3 to AmeriLink Corporation's Annual
Report on Form 10-K for the year ended March 28, 1999 and
incorporated herein by reference).
4.3 Restricted Stock Award Agreement between AmeriLink
Corporation and William H. Largent and George Manser
(filed as Exhibit 10.10 to AmeriLink Corporation Annual
Report on Form 10-K for the fiscal year ended March 30,
1997 and incorporated herein by reference).
4.4 Form of Joseph L. Govern Stock Option Agreement (filed as
Exhibit 10.4 to AmeriLink Corporation's Annual Report on
Form 10-K for the year ended March 28, 1999 and
incorporated herein by reference).
4.5 Restricted Stock Award Agreement between AmeriLink
Corporation and Joseph L. Govern.
5.1 Opinion of Mark C. Hill, Senior Vice President, Corporate
Secretary and General Counsel, as to the legality of the
securities being registered, including consent.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Mark C. Hill, Senior Vice President, Corporate
Secretary and General Counsel (included in Exhibit 5.1).
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 30th day of
July, 1999.
Tandy Corporation
By: /s/
Leonard H. Roberts, Chairman, President 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 30th day of July, 1999.
Signature Title
/s/ Chairman, President, Chief Executive Officer
Leonard H. Roberts And Director
(Principal Executive Officer)
/s/ Senior Vice President and Chief Financial
Dwain H. Hughes Officer
(Principal Financial Officer)
/s/ Vice President Controller
Richard L. Ramsey (Principal Accounting Officer)
/s/ Director
Frank J. Belatti
/s/ Director
James I. Cash, Jr.
/s/ Director
Ronald E. Elmquist
/s/ Director
Lewis F. Kornfeld
/s/ Director
Robert Kamerschen
/s/ Director
Jack L. Messman
/s/ Director
William G. Morton, Jr.
/s/ Director
Thomas G. Plaskett
/s/ Director
Alfred J. Stein
/s/ Director
William E. Tucker
/s/ Director
Edwina O. Woodbury
INDEX TO EXHIBITS
Exhibit No. Description
3.1 Restated Certificate of Incorporation of Tandy
Corporation dated July 26, 1999 incorporated
herein by reference.
3.2 Certificate of Elimination of Series C Conversion
Preferred Stock of Tandy Corporation dated
July 26, 1999.
3.3 Tandy Corporation Bylaws, restated as of December 16,
1998 (filed as Exhibit 3B to Tandy's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998
and incorporated herein by reference).
4.1 Form of 1994 Stock Incentive Plan, as amended (filed as
Exhibit 10.1 to AmeriLink Corporation's registration
statement on Form S-1 file No. 33-69832 and filed as
Exhibit A to the AmeriLink Corporation's 1998 Proxy
Statement dated July 6, 1998 which was filed on July 7,
1998 and incorporated herein by reference).
4.2 Executive Employment Agreement between Larry R. Linhart
and AmeriLink Corporation including Stock Option
Addendum (filed as Exhibit 10.3 to AmeriLink
Corporation's Annual Report on Form 10-K for the year
ended March 28, 1999 and incorporated herein by
reference).
4.3 Restricted Stock Award Agreement between AmeriLink
Corporation and William H. Largent and George Manser
(filed as Exhibit 10.10 to AmeriLink Corporation Annual
Report on Form 10-K for the fiscal year ended March 30,
1997 and incorporated herein by reference).
4.4 Form of Joseph L. Govern Stock Option Agreement (filed
as Exhibit 10.4 to AmeriLink Corporation's Annual
Report on Form 10-K for the year ended March 28, 1999
and incorporated herein by reference).
4.5 Restricted Stock Award Agreement between AmeriLink
Corporation and Joseph L. Govern.
5.1 Opinion of Mark C. Hill, Senior Vice President,
Corporate Secretary and General Counsel, as to the
legality of the securities being registered, including
consent.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Mark C. Hill, Senior Vice President,
Corporate Secretary and General Counsel (included in
Exhibit 5.1).
Exhibit 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
TANDY CORPORATION
This Restated Certificate of Incorporation of Tandy Corporation (the
"Corporation") was duly approved by the Board of Directors of the Corporation
and only restates and integrates but does not further amend the provisions of
the Corporation's Certificate of Incorporation, 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
the Restated Certificate of Incorporation set forth below except as permitted by
Section 245 of the General Corporation Law. The original Certificate of
Incorporation of the Corporation was filed with the Secretary of State of the
State of Delaware on December 19, 1967.
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 1209 Orange Street, in the City of Wilmington, County of
New Castle, Delaware 19801. The registered agent in charge thereof upon whom
process against the Corporation may be served, is The Corporation Trust Company.
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 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 made 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 prices 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.
A. Series A Junior Participating Preferred Stock
Section 1. Designation, Par Value and Amount.
There shall be a series of preferred stock of the Corporation
designated as the "Series A Junior Participating Preferred Stock," without par
value (the "Series A Preferred Stock"), and the number of shares constituting
such series shall be 300,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock, to a number less
than that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
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, in preference to the holders of shares of
Common Stock, par value $1.00 per share, of the Corporation and any other junior
stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds 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)
$500 or (b) 10,000 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions other than a dividend payable in
shares of Common Stock, or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time after July 26, 1999, (i) declare any dividend on the Common
Stock payable in Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine or consolidate the outstanding Common Stock into a smaller number
of shares, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution
on the Series A 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 $500 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 10,000 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 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) (i) If at any time dividends on any Series A Preferred
Stock, shall be in arrears in an amount equal to six (6) quarterly dividends
thereon, the occurrence of such contingency shall mark the beginning of a period
(a "default period") which shall extend until such time when all accrued and
unpaid dividends for all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Preferred Stock, then
outstanding shall have been declared and paid or set apart for payment. During
each default period, the holders of the Series A Preferred Stock with dividends
in arrears in an amount equal to six (6) quarterly dividends thereon, voting as
a class, shall have the right to elect two (2) directors.
(ii) During any default period, such voting right of the
holders of Series A Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting right nor the right of the
holders of any other series of preferred stock, if any, to increase, in certain
cases, the authorized number of directors shall be exercised unless the holders
of ten percent (10%) in number of shares of Series A Preferred Stock outstanding
shall be present in person or by proxy. The absence of a quorum of the holders
of Common Stock shall not affect the exercise by the holders of Series A
Preferred Stock of such voting right. At any meeting at which the holders of
Series A Preferred Stock shall exercise such voting right initially during an
existing default period, they shall have the right, voting as a class, to elect
directors to fill such vacancies, if any, in the Board of Directors as may then
exist up to two (2) directors, or if such right is exercised at an annual
meeting, to elect two (2) directors. If the number of directors that may be so
elected at any special meeting does not amount to the required number, the
holders of the Series A Preferred Stock shall have the right to make such
increase in the number of directors as shall be necessary to permit the election
by them of the required number. After the holders of the Series A Preferred
Stock shall have exercised their right to elect directors in any default period
and during the continuance of such period, the number of directors shall not be
increased or decreased except by vote of the holders of Series A Preferred Stock
as herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Preferred Stock.
(iii) Unless the holders of Series A Preferred Stock shall,
during an existing default period, have previously exercised their right to
elect directors, the Board of Directors may order, or any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Series A Preferred Stock outstanding, irrespective of
series, may request, the calling of a special meeting of the holders of Series A
Preferred Stock, which meeting shall thereupon be called by the Chairman,
President, a Vice-President or the Corporate Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders of Series A
Preferred Stock are entitled to vote pursuant to this paragraph (C)(iii) shall
be given to each holder of record of Series A Preferred Stock by mailing a copy
of such notice to him or her at his or her last address as the same appears on
the books of the Corporation. Such meeting shall be called for a time not
earlier than 10 days and not later than 60 days after such order or request or
in default of the calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Series A Preferred Stock outstanding. Notwithstanding
the provisions of this paragraph (C)(iii), no such special meeting shall be
called during the period within 60 days immediately preceding the date fixed for
the next annual meeting of the stockholders.
(iv) In any default period, the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue to be
entitled to elect the whole number of directors until the holders of Series A
Preferred Stock shall have exercised their right to elect two (2) directors
voting as a class, after the exercise of which right (x) the directors so
elected by the holders of Series A Preferred Stock shall continue in office
until their successors shall have been elected by such holders or until the
expiration of the default period, and (y) any vacancy in the Board of Directors
may (except as provided in paragraph (C)(ii) of this Section 3) be filled by
vote of a majority of the remaining directors theretofor elected by the holders
of the class of stock which elected the director whose office shall have become
vacant. References in this paragraph (C) to directors elected by the holders of
a particular class of stock shall include directors elected by such directors to
fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x)
the right of the holders of Series A Preferred Stock, as a class to elect
directors shall cease, (y) the term of any directors elected by the holders of
Series A Preferred Stock as a class shall terminate, and (z) the number of
directors shall be such number as may be provided for in, or pursuant to, the
Restated Certificate of Incorporation or Bylaws irrespective of any increase
made pursuant to the provisions of paragraph (C) (ii) of this Section 3 (such
number being subject, however to change thereafter in any manner provided by law
or in the Restated Certificate of Incorporation or Bylaws). Any vacancies in the
Board of Directors effected by the provisions of clauses (y) and (z) in the
preceding sentence may be filled by a majority of the remaining directors, even
though less than a quorum.
(D) 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 as 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 Restated Certificate of Incorporation, in any other Certificate
of Designations, Preferences and Rights 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 $10,000 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 "Common Adjustment") equal to the quotient obtained by dividing (i)
the Series A Liquidation Preference by (ii) 10,000 (such number in clause (ii),
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect of all outstanding
shares of Series A Preferred Stock and Common Stock, respectively, holders of
Series A Preferred Stock and holders of shares of Common Stock shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock
and Common Stock, on a per share basis, respectively.
(B) 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 Common Adjustment,
then such remaining assets shall be distributed ratably to the holders of Common
Stock.
(C) In the event the Corporation shall at any time after July
26, 1999, (i) declare any dividend on the Common Stock payable in Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine or consolidate the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to 10,000 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. In the event the Corporation shall at any time after July 26, 1999,
(i) declare any dividend on the Common Stock payable in Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine or consolidate the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that are outstanding immediately
prior to such event.
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 payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
Section 10. Amendment. The Restated 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 at least two-thirds (66 2/3%) or more of the
outstanding shares of Series A Preferred Stock, voting together as a single
class.
Section 11. Fractional Shares. Series A Preferred Stock may be
issued in fractions of a share, which are one ten-thousandths or integral
multiples of one ten-thousandths of a share, which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Preferred Stock.
B. Series B TESOP Convertible Preferred Stock
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 foregoing 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 shares 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 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.
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 affected 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 amount 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 form 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 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 from 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:
During the Twelve-
Month Period Price Per
Beginning July 1, Share
----------------- -------
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%
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 ceases to accrue, such shares will no
longer be deemed to be outstanding and all rights in respect to 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 be 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 any 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 purpose 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 for 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 adjustment 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, by 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 of 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 or 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) or 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 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 number 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 affect
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 admied 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, affected 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 affect 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 restored 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: Marc C. Hill, Vice President, General Counsel, and Corporate
Secretary) or to 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 by 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 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.
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 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.
NINTH: 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
NINTH.
In witness whereof, this Restated Certificate of Incorporation, which
restates, integrates but does not further amend the provisions of the
Corporation's Certificate of Incorporation, as theretofore amended or
supplemented, having been duly adopted by the Board of Directors of the
Corporation in accordance with the provisions of Section 245 of the General
Corporation Law of the State of Delaware, has been executed this 26th day of
July, 1999.
TANDY CORPORATION
By: /s/
Name: Dwain H. Hughes
Title: Senior Vice President and Chief
Financial Officer
Exhibit 3.2
Certificate of ELIMINATION
of
Series C CONVERSION Preferred Stock
of
Tandy Corporation
a Delaware corporation
Pursuant to ss. 151(g) of the General Corporation Law
of the State of Delaware
Pursuant to Section 151(g) of the Delaware General Corporation Law,
Tandy Corporation, a Delaware corporation (the "Corporation"), does hereby
certify that the following resolutions were duly adopted by the Corporation's
Board of Directors on July 24, 1999:
RESOLVED, that none of the shares of preferred stock, without
par value, of the Corporation designated as Series C Conversion
Preferred Stock pursuant to the Certificate of Designation filed by the
Corporation with the Secretary of State of the State of Delaware on
February 14, 1992 (the "Certificate of Designation") are outstanding
and none of such shares will be issued subject to the Certificate of
Designation; and
RESOLVED FURTHER, that the officers of the Corporation are
hereby authorized and directed to prepare and file with the Secretary
of State of the State of Delaware a certificate pursuant to Section
151(g) of the Delaware General Corporation Law setting forth this
resolution in order to eliminate from the Corporation's certificate of
incorporation all matters set forth in the Certificate of Designation
with respect to the Series C Conversion Preferred Stock and to do all
acts and things which may be necessary or proper in their opinion to
carry into effect the purposes and intent of this and the foregoing
resolution.
IN WITNESS WHEREOF, I have executed and subscribed this Certificate of
Elimination, as of this 26th day of July, 1999.
TANDY CORPORATION
By: /s/
Name: Dwain H. Hughes
Title: Senior Vice President and Chief
Financial Officer
Exhibit 4.5
AMERILINK CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
June 9, 1998
Joseph L. Govern
252 Woodedge Circle East
Powell, Ohio 43065
In recognition of your exemplary services as an officer of AmeriLink
Corporation, an Ohio corporation (the "Corporation"), the Board of Directors of
the Corporation has granted to you on this date two thousand four hundred
fourteen (2,414) common shares, without par value, of the Corporation ("Common
Shares"), as an award of restricted stock (the "Award"). Such shares are
hereinafter referred to collectively as the "Restricted Shares." The terms and
conditions of the Award are set forth below.
1. Date of Grant. The Award is granted to you effective as of June 9,
1998.
2. Transfer Restrictions. (a) Unless and until (and only to the extent
that) all or any portion of the Restricted Shares vest and become transferable
(subject to the provisions of Section 2(b) hereof), as provided in Section 4,
you may not sell, assign, transfer, pledge or otherwise encumber any of the
Restricted Shares. Promptly after the effective date hereof, the Corporation
shall deliver to you certificates evidencing the Restricted Shares issued in
your name; provided, however, that you hereby agree to deliver to the Secretary
of the Corporation the certificates representing the Restricted Shares, together
with stock powers duly endorsed in blank, promptly after the delivery of such
certificates to you.
(b) Notwithstanding any other provision of this Agreement to
the contrary, you may not sell, assign, transfer, pledge or otherwise encumber
any of the Restricted Shares which have vested and become transferable unless
and until (i) such Restricted Shares have been registered under the Securities
Act of 1933, as amended, and all applicable state securities laws or (ii) the
Corporation has received an opinion of counsel in form and substance reasonably
satisfactory to the Corporation and its counsel that such transaction is exempt
from the registration requirements of such laws. The Corporation shall have no
obligation hereunder to so register any Restricted Shares.
(c) The Corporation shall have the right to require that any
certificate for Restricted Shares issued pursuant to this Agreement bear any
restrictive legend required by law and/or to evidence restrictions on the
transfer of the shares under applicable law or this Agreement.
3. Forfeiture. You shall forfeit any portion of the Award that has not
vested and become transferable upon the earliest to occur of any of the
following: (i) the expiration of 180 days following your death, (ii) the
termination of your services as an officer of the Corporation for any reason or
no reason (including, without limitation, non-renewal of any term), or (iii)
your resignation as an officer of the Corporation. Upon the occurrence of such
forfeiture, all of your right, title and interest in and to any Restricted
Shares that constitute the portion of the Award which has been forfeited shall
be terminated and the Corporation shall cause the certificate(s) representing
the forfeited shares to be canceled or transferred free and clear of all
restrictions to its treasury.
4. Vesting Provisions. Subject to the provisions of Section 3 hereof,
eight hundred five (805) of the Restricted Shares shall vest on June 9, 1999,
eight hundred five (805) of the Restricted Shares shall vest on June 9, 2000 and
eight hundred four (804) of the Restricted Shares shall vest on June 9, 2001.
When any portion of the Award vests and becomes transferable, the Corporation
shall promptly deliver a certificate (free of all adverse claims and transfer
restrictions, except as set forth in Section 2(b) hereof) representing the
number of shares constituting the vested and transferable portion of the Award
to you at your address given above and such shares shall no longer be deemed to
be Restricted Shares subject to the terms and conditions of this Agreement
(except to the extent that the transfer of such shares may continue to be
restricted under the provisions of Section 2(b), above).
5. Dividends and Voting Rights. Except for the restrictions on transfer
set forth in Section 2 and the possibility of forfeiture set forth in Section 3,
upon the issuance of a certificate representing Restricted Shares, you shall
have all other shareholders' rights and privileges attributable to such shares,
including, without limitation, the right to vote such shares and to receive all
dividends paid on account of such shares; provided, however, that all
securities, money, funds or other property received by you on account of or in
exchange for any Restricted Shares, whether as a result of any cash or share
dividend, share split, reclassification, merger or consolidation, reorganization
or otherwise, shall be delivered to, and held by, the Corporation under the same
restrictions on transfer and possibility of forfeiture as the Restricted Shares
from which they derive.
6. Regulatory Approvals and Listings. Notwithstanding anything
contained in this Agreement to the contrary, the Corporation shall have no
obligation to issue or deliver certificates of Common Shares evidencing
Restricted Shares prior to (a) the obtaining of any approval from any
governmental agency which the Corporation shall, in its sole discretion,
determine to be necessary or advisable, (b) the admission of such shares to
trading on the Applicable Market (defined below) and (c) the completion of any
registration or other qualification of said shares under any state or Federal
law or ruling of any governmental body which the Corporation shall, in its sole
discretion, determine to be necessary or advisable.
As used herein, "Applicable Market" means the Nasdaq National Market
("NNM") or, if the Common Shares are no longer traded in the NNM, then the
principal national securities exchange, if any, on which the Common Shares are
traded as determined by the Corporation's Board of Directors or a committee
thereof, or if the Common Shares are no longer traded in the NNM or on any
national securities exchange, then such other market price reporting system
pursuant to which the Common Shares are traded or quoted as designated by the
Corporation's Board of Directors or a committee thereof.
7. Responsibility and Indemnification. No member of the Board of
Directors or any committee thereof shall be liable to the Corporation, you or
any third party for any action or determination made in good faith with respect
to this Agreement and the Award hereunder, or for any matter as to which the
Corporation's articles of incorporation or code of regulations, or any valid
contract between the Corporation and such member, limits or negates the
liability of Directors. Such members shall be entitled to indemnification and
reimbursement in the manner provided in the Corporation's articles of
incorporation and code of regulations, in any valid contract between the
Corporation and such member, and under any directors' and officers' liability
insurance coverage which may be in effect from time to time.
8. Corporate Changes. The grant of the Award pursuant to this Agreement
shall not affect the right or power of the Corporation to make adjustments,
reclassifications, reorganizations, or changes of its stock, securities, capital
or business structure, or to merge, consolidate, dissolve, or liquidate, or to
sell, lease or transfer all or any part of its business or assets.
9. Change in Control. In the event of a Change in Control (defined
below), all restrictions previously established with respect to the Award and
the Restricted Shares will conclusively be deemed to have been satisfied. You
shall be entitled to have issued to you the Restricted Shares, free and clear of
any restriction or restrictive legend, except that if upon the advice of counsel
to the Corporation, Common Shares cannot lawfully be issued without restriction,
then the Corporation shall make payment to you in cash in an amount equal to the
Change in Control Price (defined below)of the Common Shares that otherwise would
have been issued, subject to the following terms and conditions:
(i) Such cash payments to you shall be due and payable, and
shall be paid by the Corporation, immediately upon the occurrence of such Change
in Control; and
(ii) After the payment provided for in (i) above, you
shall have no further rights under this Agreement or the
Award.
As used herein, "Change in Control" means (a) the acquisition
after the effective date hereof by any "Person" (defined for the purposes of
this Section to mean any person within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than the
Corporation or an employee benefit plan created by the Board of Directors of the
Corporation), either directly or indirectly, of the beneficial ownership
(determined under Rule 13d-3 of the Regulations promulgated by the Securities
and Exchange Commission ("SEC") under Section 13(d) of the Exchange Act) of any
securities issued by the Corporation if, after such acquisition, such Person is
the beneficial owner of securities issued by the Corporation having 20% or more
of the voting power in the election of Directors at the next meeting of the
holders of voting securities to be held for such purpose of all of the voting
securities issued by the Corporation, if such person acquired such beneficial
ownership without the prior consent of the Board of Directors; (b) the
commencement (determined under Rule 14d-2 of the Regulations promulgated by the
SEC under Section 14(d) of the Exchange Act) after the effective date of hereof
by any Person of a tender offer subject to the provisions of Section 14(d) of
the Exchange Act if, after consummation of such tender offer, such Person would,
directly or indirectly, be the beneficial owner of securities issued by the
Corporation having 20% or more of the voting power in the election of Directors
at the next meeting of the holders of voting securities to be held for such
purpose of all of the voting securities issued by the Corporation, if such
Person commenced such tender offer without the prior written consent of the
Directors; (c) the election of a majority of the Directors, elected at any
meeting of the holders of voting securities of the Corporation, who were not
nominated for such election by the Board of Directors or a duly constituted
committee of the Board of Directors; or (d) the merger or consolidation with or
transfer of substantially all of the assets of the Corporation to another person
if the Board of Directors does not adopt a resolution, before the Corporation
enters into any agreement for such merger, consolidation or transfer,
determining that it is not a Change in Control.
As used herein, "Change in Control Price" means the higher of (i) the
mean of the high and low closing prices for the Corporation's Common Shares on
the Applicable Market on the date of determination of the Change in Control, or
(ii) the highest price per share actually paid for the Common Shares in
connection with the Change in Control.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, except as preempted by applicable
Federal law. If any one or more provisions of this Agreement shall be found to
be illegal or unenforceable in any respect, the validity and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired
thereby.
11. Miscellaneous. This Agreement constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof. This Agreement
may not be modified, changed or amended except in a writing signed by each of
the parties hereto. This Agreement may be signed in multiple counterparts, each
of which shall be deemed an original hereof. The captions of the several
sections and subsections of this Agreement are not a part of the context hereof,
are inserted only for convenience in locating such sections and subsections and
shall be ignored in construing this Agreement.
Please acknowledge your receipt and agreement to the provisions of this
Agreement by signing the enclosed copy hereof in the space provided below and
returning it promptly to the Corporation.
AMERILINK CORPORATION
By:
Larry R. Linhart, President
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST SET FORTH ABOVE:
JOSEPH L. GOVERN
Exhibit 5.1
TANDY CORPORATION
Executive Offices 100 Throckmorton St., Ste. 1700, Fort Worth, Texas 76102
Telephone (817) 390-3700
July 30, 1999
Tandy Corporation
100 Throckmorton St., Suite 1800
Fort Worth, TX 76102
Ladies and Gentlemen:
I am the Senior Vice President, Corporate Secretary and General Counsel of Tandy
Corporation (the "Company") and have assisted with the filing with the
Securities and Exchange Commission (the "Commission"), under the Securities Act
of 1933, as amended, (the "Act") of a Post-Effective Amendment No. 1 on Form S-8
to Form S-4 Registration Statement (the "Registration Statement") for the
purpose of registering 335,000 shares of common stock, $1.00 par value, of the
Company (the "Shares") all in accordance with the terms of the AmeriLink 1994
Stock Incentive Plan, Executive Employment Agreement between Larry R. Linhart
and AmeriLink Corporation including Stock Option Addendum, Restricted Stock
Award Agreement between AmeriLink Corporation and William H. Largent and George
Manser and Form of Joseph L. Govern Stock Option Agreement (collectively, the
"Plans"). In such capacity, I have examined the Company's Restated Certificate
of Incorporation, as amended, the Restated By-Laws of the Company, the Plans,
and such other documents of the Company as I have deemed necessary or
appropriate for the purposes of the opinion expressed herein.
Based upon the foregoing, in my opinion the Shares, when issued by the Company
and fully paid for in accordance with the provisions of the Plans and any
agreement applicable to such Shares (with the consideration received by the
Company, being not less than the par value thereof), will be validly issued,
fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of my name wherever appearing in the Registration
Statement and any amendment thereto.
Very truly yours,
/s/
Mark C. Hill
Senior Vice President, Corporate Secretary and
General Counsel
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 1 on Form S-8 to Form S-4 Registration Statement of our report
dated February 24, 1999, relating to the consolidated financial statements,
which appears in the 1998 Annual Report to Shareholders of Tandy Corporation,
which is incorporated by reference in Tandy Corporation's Annual Report on Form
10-K for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
Fort Worth, Texas
July 28, 1999
