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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
----------
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1999 Commission file number 1-27
TEXACO INC.
(Exact name of the registrant as specified in its charter)
Delaware 74-1383447
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2000 Westchester Avenue
White Plains, New York 10650
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (914) 253-4000
----------
Texaco Inc. (1) HAS FILED all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the preceding 12 months, and
(2) HAS BEEN subject to such filing requirements for the past 90 days.
As of April 30, 1999, there were outstanding 536,492,771 shares of Texaco
Inc. Common Stock - par value $3.125.
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<PAGE>
PART I - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
TEXACO INC.
STATEMENT OF CONSOLIDATED INCOME
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
--------------------------------------------------
(Millions of dollars, except as noted)
(Unaudited)
----------------------
For the three months
ended March 31,
----------------------
1999 1998
---- ----
<S> <C> <C>
REVENUES
Sales and services $ 6,914 $ 7,922
Equity in income of affiliates,
interest, asset sales and other 276 225
-------- --------
7,190 8,147
-------- --------
DEDUCTIONS
Purchases and other costs 5,450 6,114
Operating expenses 559 580
Selling, general and administrative expenses 290 276
Exploratory expenses 130 141
Depreciation, depletion and amortization 361 388
Interest expense 121 118
Taxes other than income taxes 76 116
Minority interest 19 15
-------- --------
7,006 7,748
-------- --------
Income before income taxes and cumulative effect
of accounting change 184 399
Provision for (benefit from) income taxes (15) 140
-------- --------
Income before cumulative effect of accounting change 199 259
Cumulative effect of accounting change -- (25)
-------- --------
NET INCOME $ 199 $ 234
======== ========
Preferred stock dividend requirements $ 13 $ 14
-------- --------
Net income available for common stock $ 186 $ 220
======== ========
Per common share (dollars)
Basic net income $ .35 $ .41
Diluted net income $ .35 $ .42
Cash dividends paid $ .45 $ .45
Average shares outstanding for computation of
earnings per share (thousands)
Basic 526,230 531,914
Diluted 526,892 551,421
<FN>
See accompanying notes to consolidated financial statements.
</FN>
</TABLE>
- 1 -
<PAGE>
<TABLE>
<CAPTION>
TEXACO INC.
CONSOLIDATED BALANCE SHEET
AS OF MARCH 31, 1999 AND DECEMBER 31, 1998
------------------------------------------
(Millions of dollars)
March 31, December 31,
1999 1998
----------- ------------
(Unaudited)
-----------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $ 263 $ 249
Short-term investments - at fair value 85 22
Accounts and notes receivable, less allowance for doubtful
accounts of $27 million in 1999 and $28 million in 1998 3,483 3,955
Inventories 1,296 1,154
Deferred income taxes and other current assets 337 256
------- -------
Total current assets 5,464 5,636
Investments and Advances 6,787 7,184
Properties, Plant and Equipment - at cost 35,861 35,494
Less - accumulated depreciation, depletion and amortization 21,048 20,733
------- -------
Net properties, plant and equipment 14,813 14,761
Deferred Charges 1,015 989
------- -------
Total $28,079 $28,570
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Short-term debt $ 700 $ 939
Accounts payable and accrued liabilities
Trade liabilities 1,980 2,302
Accrued liabilities 1,131 1,368
Estimated income and other taxes 682 655
------- -------
Total current liabilities 4,493 5,264
Long-Term Debt and Capital Lease Obligations 6,784 6,352
Deferred Income Taxes 1,541 1,644
Employee Retirement Benefits 1,263 1,248
Deferred Credits and Other Noncurrent Liabilities 1,532 1,550
Minority Interest in Subsidiary Companies 690 679
------- -------
Total 16,303 16,737
Stockholders' Equity
Market Auction Preferred Shares 300 300
ESOP Convertible Preferred Stock 378 428
Unearned employee compensation and benefit plan trust (331) (334)
Common stock (authorized: 700,000,000 shares, $3.125 par value;
567,576,504 shares issued in 1999; 567,606,290 shares issued in 1998) 1,774 1,774
Paid-in capital in excess of par value 1,627 1,640
Retained earnings 9,519 9,561
Other accumulated nonowner changes in equity
Currency translation adjustment (107) (107)
Minimum pension liability adjustment (24) (24)
Unrealized net gain on investments 10 30
------- -------
Total other accumulated nonowner changes in equity (121) (101)
------- -------
13,146 13,268
Less - Common stock held in treasury, at cost 1,370 1,435
------- -------
Total stockholders' equity 11,776 11,833
------- -------
Total $28,079 $28,570
======= =======
<FN>
See accompanying notes to consolidated financial statements.
</FN>
</TABLE>
-2-
<PAGE>
<TABLE>
<CAPTION>
TEXACO INC.
CONDENSED STATEMENT OF CONSOLIDATED CASH FLOWS
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
--------------------------------------------------
(Millions of dollars)
(Unaudited)
-----------------------
For the three months
ended March 31,
-----------------------
1999 1998
---- ----
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 199 $ 234
Reconciliation to net cash provided by (used in)
operating activities
Cumulative effect of accounting change -- 25
Depreciation, depletion and amortization 361 388
Deferred income taxes (83) 56
Exploratory expenses 130 141
Minority interest in net income 19 15
Dividends from affiliates, less than equity
in income (71) (130)
Gains on asset sales (22) (5)
Changes in operating working capital (377) (242)
Other - net 6 175
----- -----
Net cash provided by operating activities 162 657
INVESTING ACTIVITIES
Capital and exploratory expenditures (529) (784)
Proceeds from asset sales 46 42
Purchases of investment instruments (178) (256)
Sales/maturities of investment instruments 504 247
Collection of note from affiliate 101 -
----- -----
Net cash used in investing activities (56) (751)
FINANCING ACTIVITIES
Borrowings having original terms in excess
of three months
Proceeds 837 396
Repayments (243) (277)
Net increase (decrease) in other borrowings (419) 363
Purchases of common stock -- (105)
Dividends paid to the company's stockholders
Common (237) (239)
Preferred (3) (5)
Dividends paid to minority shareholders (8) (9)
----- -----
Net cash provided by (used in) financing activities (73) 124
CASH AND CASH EQUIVALENTS
Effect of exchange rate changes (19) (6)
----- -----
Increase during period 14 24
Beginning of year 249 311
----- -----
End of period $ 263 $ 335
===== =====
<FN>
See accompanying notes to consolidated financial statements.
</FN>
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
TEXACO INC.
CONDENSED STATEMENT OF CONSOLIDATED NONOWNER CHANGES IN EQUITY
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
--------------------------------------------------------------
(Millions of dollars)
(Unaudited)
--------------------
For the three months
ended March 31,
--------------------
1999 1998
---- ----
<S> <C> <C>
NET INCOME $199 $234
Other nonowner changes in equity (net of tax)
Currency translation adjustment -- (2)
Minimum pension liability adjustment -- 2
Unrealized net gain (loss) on investments (20) 5
---- ----
(20) 5
---- ----
TOTAL NONOWNER CHANGES IN EQUITY $179 $239
==== ====
</TABLE>
TEXACO INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
Note 1. Segment Information
- ---------------------------
<TABLE>
<CAPTION>
Sales and Services
------------------ After Assets
Inter- Tax at
Quarter Ended March 31, 1999 Outside Segment Total Profit (Loss) Quarter-End
- ---------------------------- ------- ------- ----- ------------- -----------
(Millions of dollars)
(Unaudited)
<S> <C> <C> <C> <C> <C>
Exploration and production
United States $ 349 $296 $ 645 $ 38 $ 8,698
International 445 239 684 (20) 4,421
Refining, marketing and distribution
United States 605 3 608 63 3,999
International 4,552 39 4,591 220 8,421
Global gas marketing 948 24 972 12 752
------ ---- ------ ---- -------
Segment totals $6,899 $601 7,500 313 26,291
Other business units ====== ==== 23 (6) 553
Corporate/Non-operating 1 (108) 1,407
Intersegment eliminations (610) -- (172)
------ ---- -------
Consolidated $6,914 $199 $28,079
====== ==== =======
</TABLE>
- 4 -
<PAGE>
<TABLE>
<CAPTION>
Sales and Services
------------------ After Assets
Inter- Tax at
Quarter Ended March 31, 1998 Outside Segment Total Profit (Loss) December 31, 1998
- ---------------------------- ------- ------- ----- ------------- -----------------
(Millions of dollars) (Millions of dollars)
(Unaudited)
<S> <C> <C> <C> <C> <C>
Exploration and production
United States $ 488 $ 454 $ 942 $ 108 $ 8,699
International 529 296 825 48 4,352
Refining, marketing and distribution
United States 716 55 771 47 4,095
International 4,954 11 4,965 182 8,306
Global gas marketing 1,217 19 1,236 (9) 879
------- ------- ------- ------- -------
Segment totals $ 7,904 $ 835 8,739 376 26,331
Other business units ======= ======= 26 2 506
Corporate/Non-operating 2 (119) 1,945
Intersegment eliminations (845) -- (212)
Consolidated, before cumulative ------- ------- -------
effect of accounting change $ 7,922 $ 259 $28,570
======= ======= =======
</TABLE>
Note 2. Inventories
- -------------------
The inventory accounts of Texaco are presented below (in millions of dollars):
<TABLE>
<CAPTION>
As of
-------------------------------------
March 31, December 31,
1999 1998
--------- ------------
(Unaudited)
<S> <C> <C>
Crude oil $ 194 $ 116
Petroleum products and petrochemicals 868 799
Other merchandise 31 40
Materials and supplies 203 199
------ ------
Total $1,296 $1,154
====== ======
</TABLE>
Note 3. Redemption of Series F ESOP Convertible Preferred Stock
- ---------------------------------------------------------------
On February 16, 1999, each share of Series F ESOP Convertible Preferred Stock
was converted into 20 shares, or 1.1 million shares in total, of Common Stock of
Texaco Inc., after we called the Series F for redemption.
Note 4. Other Financial Information, Commitments and Contingencies
- ------------------------------------------------------------------
Information relative to commitments and contingent liabilities of Texaco is
presented in Note 16, pages 67-68, of our 1998 Annual Report.
On April 7, 1999, the federal court in Texas approved a settlement agreement
with most of the plaintiffs in the seventeen purported class actions pending in
Texas and six other states. The plaintiffs alleged that Texaco and approximately
fifty other oil companies underpaid royalties and severance taxes to them.
Similar claims by the federal and various state governments remain unresolved.
- 5 -
<PAGE>
In June 1997, Caltex Corporation received a claim from the United States
Internal Revenue Service (IRS) for $292 million in excise taxes, $140 million in
penalties and $1.6 billion in interest. The IRS claim relates to sales of crude
oil by Caltex to Japanese customers beginning in 1980. Caltex believes the
underlying claim for excise taxes and penalties is wrong and that the claim for
interest is flawed. We believe that this claim is without merit and is not
anticipated to be materially important in relation to our consolidated financial
position or results of operations. In May 1998, Caltex filed a complaint in the
United States Court of Federal Claims asking the Court to hold that Caltex owes
nothing on the IRS claim. A decision by the Court remains pending. In February
1999, Caltex renewed a letter of credit for $2.5 billion to the IRS that was
required to pursue the claim. In May 1999, the IRS agreed to reduce the letter
of credit to $200 million. Texaco and its 50% partner, Chevron Corporation, have
severally guaranteed Caltex' letter of credit obligation to a syndicate of
banks.
----------
It is impossible for us to ascertain the ultimate legal and financial liability
with respect to contingencies and commitments. However, we do not anticipate
that the aggregate amount of such liability in excess of accrued liabilities
will be materially important in relation to our consolidated financial position
or results of operations.
Note 5. Investments in Significant Equity Affiliates
- ----------------------------------------------------
U.S. Downstream Alliances
Summarized unaudited financial information for Equilon, formed January 1, 1998
and jointly owned 44% by Texaco and 56% by Shell Oil Company, is presented below
on a 100% Equilon basis (in millions of dollars):
<TABLE>
<CAPTION>
For the three months
ended March 31,
--------------------
1999 1998
---- ----
<S> <C> <C>
Gross revenues $5,779 $6,360
Income before income taxes $ 171 $ 112
</TABLE>
Summarized unaudited financial information for Motiva, formed July 1, 1998 and
jointly owned 32.5% each by Texaco and Saudi Refining, Inc. (a corporate
affiliate of Saudi Aramco) and 35% by Shell Oil Company, is presented below on a
100% Motiva basis (in millions of dollars):
<TABLE>
<CAPTION>
For the three months
ended March 31, 1999
--------------------
<S> <C>
Gross revenues $2,242
Income before income taxes $ 41
</TABLE>
We account for our interests in Equilon and Motiva using the equity method of
accounting. Under this method, we record our share of Equilon's and Motiva's
results of operations on a one-line basis to Equity in Income of Affiliates in
the Statement of Consolidated Income. Additionally, since Equilon and Motiva are
limited liability companies, we record the provision and related liability for
income taxes applicable to our share of Equilon's and Motiva's pre-tax income in
our consolidated financial statements.
Caltex Group of Companies
Summarized unaudited financial information for the Caltex Group of Companies,
owned 50% by Texaco and 50% by Chevron Corporation, is presented below on a 100%
Caltex Group basis (in millions of dollars):
- 6 -
<PAGE>
<TABLE>
<CAPTION>
For the three months
ended March 31,
--------------------
1999 1998
---- ----
<S> <C> <C>
Gross revenues $3,960 $4,306
Income before income taxes $ 289 $ 320
Income before cumulative effect
of accounting change $ 203 $ 205
Net income $ 203 $ 155
</TABLE>
Effective January 1, 1998, Caltex adopted a new accounting standard, Statement
of Position 98-5, "Reporting on the Costs of Start-Up Activities," issued by the
American Institute of Certified Public Accountants. This resulted in a change in
accounting for start-up costs at Caltex' Thailand refinery. Caltex' first
quarter 1998 results included a $50 million charge (no tax benefit) associated
with this accounting change.
* * * * * * * * * * *
In the determination of unaudited financial statements for the three-month
periods ended March 31, 1999 and 1998, our accounting policies have been applied
on a basis consistent with the application of such policies in our financial
statements issued in our 1998 Annual Report. In our opinion, we have made all
adjustments and disclosures necessary to present fairly our results of
operations for such periods. These adjustments include normal recurring
adjustments. The information is subject to year-end audit by independent public
accountants. We make no forecasts or representations with respect to the level
of net income for the year 1999.
* * * * * * * * * * *
SUPPLEMENTAL MARKET RISK DISCLOSURES
We are exposed to the following types of market risks:
o The price of crude oil, natural gas and petroleum products
o The value of foreign currencies in relation to the U.S. dollar
o Interest rates
We use derivative financial instruments, such as futures, forwards, options and
swaps, in managing these risks. There were no material changes during the first
quarter of 1999 in our exposures to loss from possible future changes in the
price of crude oil, natural gas and petroleum products, or from possible future
changes in the value of foreign currencies in relation to the U. S. dollar.
The Liquidity section of the MD&A appearing on page 11 of this Form 10-Q
describes financing and related hedging transactions we entered into during the
first quarter of 1999 and shortly thereafter. As a result of those transactions,
our variable rate debt, before the effects of interest rate swaps, now totals
$2.2 billion, as compared with $2.7 billion at year-end 1998. The notional
amount of interest rate swaps increased $850 million and now totals $1.6
billion. Based on our present interest rate exposure on variable rate debt and
interest rate swaps, a hypothetical increase or decrease in interest rates of
200 basis points would not materially affect our consolidated financial
position, net income or cash flows.
-7 -
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
---------------------------------------------
RESULTS OF OPERATIONS
- ---------------------
Texaco's net income for the first quarter of 1999 was $199 million ($.35 per
share). This compares with net income for the first quarter of 1998 of $234
million ($.42 per share). Both periods included special items. Excluding special
items, income was $105 million ($.18 per share) for the first quarter of 1999
and $259 million ($.46 per share) for the first quarter of 1998.
Continuing low crude oil and natural gas prices through early March and a high
level of exploratory expenses depressed our first quarter earnings. Fortunately,
prices have recently strengthened significantly, which is a very positive signal
for the rest of the year. We are also encouraged by the results of our cost
containment programs, which have reduced our expenses per barrel by six percent,
and by the acceleration by our U.S. downstream alliances of targeted synergy
benefits during 1999.
Our worldwide production levels declined as a result of operational problems in
the U.K. North Sea, which impacted expected production by approximately 30,000
barrels per day, and in the U.S., due to reduced capital spending by Texaco and
other operators in reaction to the significantly lower prices for oil and gas.
In April, production in the U.K. North Sea returned to normal levels and overall
worldwide production is expected to be higher in the second quarter and for the
remainder of the year.
Despite the challenges our industry faced this past year, we continued to
aggressively search for new sources of production and in the first quarter of
1999, we announced two significant exploratory successes offshore Nigeria.
In the U.S. downstream, after a slow start, margins improved late in the first
quarter. While first quarter earnings were weaker in the international
downstream compared to last year, the stabilization of markets in the Caltex
region and in Brazil in March are encouraging signs which should lead to
improved margins in the months ahead.
Results for the first quarter of 1999 and 1998 are summarized in the following
table. Details on special items are included in the segment analysis which
follows this table.
<TABLE>
<CAPTION>
(Unaudited)
------------------------
For the three months
ended March 31,
------------------------
1999 1998
---- ----
(Millions of Dollars)
<S> <C> <C>
Income before special items $105 $259
Inventory valuation adjustments 83 -
Production tax refund 11 -
---- ----
Special items 94 -
---- ----
Adoption of new accounting standard
Cumulative effect of accounting change - (25)
---- ----
Net income $199 $234
==== ====
</TABLE>
Effective January 1, 1998, our affiliate, Caltex, adopted a new accounting
standard, Statement of Position 98-5, "Reporting on the Costs of Start-Up
Activities," issued by the American Institute of Certified Public Accountants.
This resulted in a change in accounting for start-up costs at its Thailand
refinery. Our first quarter 1998 results included a $25 million charge
associated with this accounting change.
- 8 -
<PAGE>
OPERATING RESULTS
EXPLORATION AND PRODUCTION
United States
Exploration and production earnings in the U.S. for the first quarter of 1999
were $38 million, as compared with $108 million for the first quarter of 1998.
Results for 1999 included a special benefit of $11 million for a production tax
refund. Excluding the special benefit, results for the first quarter of 1999
totaled $27 million.
U.S. exploration and production earnings for the first quarter of 1999 were
below last year mostly due to lower crude oil and natural gas prices. Continued
weakness in worldwide demand growth and high inventory levels contributed to the
decline in prices. For the first quarter of 1999, average realized crude oil
prices were $9.11 per barrel, 23 percent below last year and average natural gas
prices were $1.79 per MCF, 16 percent below last year. However, prices began to
rise in March as OPEC and several non-OPEC countries announced production
cutbacks and worldwide inventory levels began to decline.
Daily production for the first quarter of 1999 was 12 percent lower than last
year due to natural field declines. Capital expenditures were reduced by Texaco
and other operators given the low prevailing commodity prices.
Expenses were lower as a result of cost savings from the restructuring of our
worldwide upstream organization. Exploratory expenses for the quarter were $54
million before tax, $42 million below last year.
International
Exploration and production results outside the U.S. for the first quarter of
1999 were a loss of $20 million, as compared with earnings of $48 million for
the first quarter of 1998.
International exploration and production operating results for the first quarter
of 1999 were below last year mostly due to lower crude oil and natural gas
prices and higher exploratory expenses. Industry fundamentals of low demand
growth and high inventories kept downward pressure on commodity prices. For the
first quarter of 1999, average realized crude oil prices were $9.88 per barrel,
17 percent lower than last year and average natural gas prices were $1.51 per
MCF, seven percent below last year. In March, crude oil prices began to rise due
to worldwide production cutbacks and inventory declines.
Daily production for the first quarter of 1999 was unchanged from last year.
Decreased production of 30,000 barrels per day, mostly as a result of separator
problems at the Captain field, in the U.K. North Sea reduced earnings by $10
million. Production increased in the Partitioned Neutral Zone and the U.K.
Galley field.
Exploratory expenses for the first quarter were $76 million before taxes, $31
million higher than last year mostly due to an unsuccessful exploratory well in
a new offshore area of Trinidad.
Looking Forward in the Worldwide Upstream
We intend to cost-effectively explore for, develop and produce crude oil and
natural gas reserves, despite the current low price environment. Our areas of
focus include the U.S. Gulf of Mexico, the U.K. North Sea, Kazakhstan, Latin
America and West Africa, where we recently announced two major oil discoveries
offshore Nigeria.
We expect $200 million in annual pre-tax cash expense savings from our worldwide
upstream restructuring program announced in November, 1998. The program is
designed to place greater emphasis on our long-term production and reserve
growth, and to address the need for streamlining costs and improving
competitiveness. These savings include lower people-related expenses and
operating expenses.
- 9 -
<PAGE>
REFINING, MARKETING AND DISTRIBUTION
United States
Refining, marketing and distribution earnings in the U.S. for the first quarter
of 1999 were $63 million as compared with $47 million for the first quarter of
1998. We value inventories at the lower of cost or market, after initial
recording at cost. Results for the first quarter of 1999 included a special
benefit of $8 million due to higher inventory values on March 31, 1999. This
follows a fourth-quarter 1998 charge of $34 million to reflect lower prices on
December 31, 1998 for inventories of crude oil and refined products. Inventory
valuation adjustments are reversed when the associated physical units of
inventory are sold. Excluding this special benefit, results for the first
quarter of 1999 totaled $55 million.
We conduct our U.S. downstream activities primarily through Equilon Enterprises
LLC, our western alliance with Shell Oil Company, and Motiva Enterprises LLC,
our eastern alliance with Shell Oil Company and Saudi Refining, Inc.
During the quarter, Equilon's earnings benefited from improved refining margins.
Although West Coast refining margins were weak for the first two months due to
high inventory levels, they improved during March as a result of industry supply
disruptions. The first quarter of 1999 also benefited from the realization of
synergies including reduced additive costs and higher utilization of proprietary
pipelines.
Motiva captured synergy benefits which contributed to higher first quarter 1999
results. The most significant of these relate to marketing staff and function
consolidation and hydrotreater realignment at the Convent refinery. These
benefits, together with higher gasoline sales, were somewhat offset by weaker
refinery margins in 1999 due to warmer than normal weather and high inventory
levels.
International
Refining, marketing and distribution earnings outside the U.S. for the first
quarter of 1999 were $220 million, as compared with $182 million for the first
quarter of 1998. We value inventories at the lower of cost or market, after
initial recording at cost. Results for the first quarter of 1999 included a
special benefit of $75 million due to higher inventory values at March 31, 1999.
This follows a fourth-quarter 1998 charge of $108 million to reflect lower
prices on December 31, 1998 for inventories of crude oil and refined products.
Inventory valuation adjustments are reversed when the associated physical units
of inventory are sold. Excluding this special benefit, results for the first
quarter of 1999 totaled $145 million.
International refining, marketing and distribution earnings before special items
for the first quarter of 1999 declined from 1998. The decline was due to lower
operating earnings in our Caltex and Latin American areas of operations. In our
Caltex affiliate, margins in Korea in the first quarter of 1998 benefited from
the partial recovery of currency losses experienced in the fourth quarter of
1997. After adjusting for currency effects, Caltex operating income improved in
1999 due to stronger marketing margins, higher sales volumes and reduced
operating expenses.
Results in Latin America declined due to the margin impacts and currency effects
related to the weakening of the Brazilian economy in the first quarter of 1999.
However, margins increased in West Africa, Central America and the Caribbean
this year, which partly offset the events in Brazil. Results in Europe were in
line with last year.
Looking Forward in the Worldwide Downstream
We anticipate that our U.S. joint ventures with Shell and Saudi Refining, Inc.
will continue to lower costs and capture synergies. We expect that our share of
these annual pre-tax cost reductions will be over $300 million. These savings
include lower people-related expenses and reductions in cash operating expenses
due to efficiencies. We will continue to expand our operations in Latin America.
In addition, we expect that our share of the annual pre-tax cost savings from
the Caltex reorganization will be $25 million, representing lower people-related
expenses.
- 10 -
<PAGE>
GLOBAL GAS MARKETING
Global gas marketing earnings for the first quarter of 1999 were $12 million, as
compared with a loss of $9 million for the first quarter of 1998.
First quarter 1999 results benefited from improved margins in our U.S.
operations. Additionally, our U.S. gas marketing results included a gain on the
sale of a gas gathering pipeline. We also recognized a gain on the sale of our
50 percent interest in our retail gas marketing operation in the United Kingdom.
This sale successfully completed our exit from the U.K. domestic gas market
where we disposed of our wholesale business in late 1998.
We anticipate $20 million in annual pre-tax cost savings from the global gas
marketing restructuring announced in November 1998. These savings include lower
people-related expenses and benefits from our exiting the United Kingdom gas
marketing business.
OTHER BUSINESS UNITS
Results for the first quarter of 1999 were a loss of $6 million, as compared
with earnings of $2 million for the first quarter of 1998. Our other business
units include insurance activity and power generation and gasification
operations.
CORPORATE/NON-OPERATING
Corporate/Non-operating charges for the first quarter of 1999 were $108 million,
as compared with charges of $119 million for the first quarter of 1998.
Corporate/Non-operating results for the first quarter of 1999 benefited from
gains on the sale of marketable securities. Net interest expense for the first
quarter of 1999 was unchanged from last year.
We expect annual pre-tax cost savings of $60 million as a result of the fourth
quarter 1998 corporate center reorganization and other cost-cutting initiatives,
mainly lower people-related expenses and operating expenses.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
Our cash, cash equivalents and short-term investments were $348 million at March
31, 1999, as compared with $271 million at year-end 1998.
During 1999, our operations provided cash of $162 million. We raised an
additional $175 million from net borrowings and $326 million from net sales of
long-term investments. Early collection of a note receivable from our affiliate
Equilon generated another $101 million. We spent $529 million on our capital and
exploratory program and paid $248 million in common, preferred and minority
interest dividends.
At March 31, 1999, our ratio of total debt to total borrowed and invested
capital was 37.5%, as compared with 36.8% at year-end 1998. At March 31, 1999,
our long-term debt included $2.05 billion of debt scheduled to mature within one
year, which we have both the intent and ability to refinance on a long-term
basis. During the first quarter of 1999, our debt activity included a $400
million borrowing due 2009, $242 million issued under our medium-term note
program and a $100 million borrowing associated with one of our producing
interests located in the U.K. North Sea. In addition, we reduced our commercial
paper by $643 million, to $974 million at March 31, 1999, while increasing other
debt obligations by $76 million. During the first quarter of 1999, we entered
into $500 million of floating rate pay interest rate swaps. We maintain $2.05
billion in revolving credit facilities, which were unused at March 31, 1999, to
provide additional support for liquidity and our commercial paper program.
- 11 -
<PAGE>
Subsequent to March 31, 1999, we established a new "shelf" registration for $1.5
billion, and we issued $1 billion from this "shelf" registration under our
medium-term note program, to refinance existing short-term debt. In connection
with this issuance, we entered into $350 million of floating rate pay interest
rate swaps. All floating rate swaps entered into to date in 1999 are indexed to
LIBOR.
We consider our financial position to be sufficiently strong to meet our
anticipated future financial requirements.
REORGANIZATIONS, RESTRUCTURINGS AND EMPLOYEE SEVERANCE PROGRAMS
- ---------------------------------------------------------------
In the fourth quarter of 1998, we announced reorganizations for several of our
operations and began implementing other cost-cutting initiatives to reduce costs
and improve focus in growth areas. The principal units affected were our
worldwide upstream operations; our global gas marketing operations; our
international downstream operations, principally our marketing operations in the
United Kingdom and Brazil and our refining operations in Panama; and, our
corporate center. The reorganizations were completed by the end of the first
quarter of 1999.
We accrued $115 million ($80 million, net of tax) for employee separations,
curtailment costs and special termination benefits associated with these
announced restructurings in the fourth quarter of 1998. The accrual included $56
million applicable to our worldwide upstream, $5 million recorded by our global
gas marketing business, $25 million applicable to our international downstream
areas, and $29 million for our corporate center. The costs related to the
severance programs are reflected in the Statement of Consolidated Income,
primarily as an increase in operating expenses. At the time we announced these
programs, we estimated that over 1,400 employee reductions would result.
Employee reductions of approximately 800, 100, 300 and 200, respectively, are
expected in our worldwide upstream, global gas marketing, international
downstream areas and corporate center. At the end of the first quarter of 1999,
we have not made changes to these estimates. Through March 31, 1999, employee
reductions totaled 424, 51, 160 and 219 in our worldwide upstream, global gas
marketing, international downstream areas and corporate center, respectively.
Almost all of the remaining employees will be leaving during the second quarter
of this year. Of the $115 million commitment recorded during the fourth quarter
of 1998, payments of $8 million, $1 million, $12 million and $13 million,
respectively, have been recorded against the expense accrual related to each of
our four restructuring initiatives. We will pay the remaining benefit liability
of $81 million (worldwide upstream - $48 million; global gas marketing - $4
million; international downstream - $13 million; and, corporate center - $16
million) in future periods in accordance with plan provisions.
CAPITAL AND EXPLORATORY EXPENDITURES
- ------------------------------------
Capital and exploratory expenditures were $669 million for the first quarter of
1999, compared with $967 million for the same period in 1998.
While U.S. upstream spending slowed considerably, we continued to focus on
platform construction in the Gulf of Mexico and developmental drilling in
California. Internationally, increased exploratory activity, primarily in
Trinidad and Colombia, and developmental work in the U.K. North Sea Captain
field were more than offset by lower spending in Eurasia where we made a
significant investment in the Karachaganak project in the first quarter of 1998.
Downstream activities also decreased following refinery project completions in
the U.S. and the slowing of re-imaging and brand initiatives in the U.S. and
Caltex areas of operation. We also spent less on a gas pipeline project which
incurred peak expenditures in 1998. Other operations reflected an increase in
spending for an Indonesian cogeneration facility.
- 12 -
<PAGE>
EURO CONVERSION
- ---------------
On January 1, 1999, 11 of the 15 member countries of the European Union
established fixed conversion rates between their existing legacy currencies and
one common currency--the euro. The euro began trading on world currency
exchanges and may be used in business transactions. On January 1, 2002, new
euro-denominated bills and coins will be issued, and legacy currencies will be
completely withdrawn from circulation by June 30 of that year.
Prior to introduction of the euro, our operating subsidiaries affected by the
euro conversion completed computer systems upgrades and fiscal and legal due
diligence to ensure our euro readiness. While remaining systems adaptations and
legal due diligence reviews are ongoing, all our operating subsidiaries had the
capability to comply with necessary business requirements and customer/supplier
preferences with the introduction of the euro on January 1, 1999. We, therefore,
experienced no major impact to our current business operations.
We are currently reviewing our marketing and operational policies and procedures
to ensure our ability to continue to successfully conduct all aspects of our
business in this new, price-transparent market. We believe that the euro
conversion will not have a material adverse impact on our financial condition or
results of operations.
YEAR 2000
- ---------
On pages 39 and 40 of our 1998 Annual Report, we discussed our state of
readiness and our costs, risks and contingency plans for dealing with potential
year 2000 (Y2K) date change problems. We reported that approximately 95% of the
computers and computer software involved in corporate financial applications,
and about 5% of our industrial automation systems used in refineries, lubricant
and gas plants and oil well operations needed modification or upgrade. We have
not identified any material additional Y2K risks that we did not discuss in our
1998 Annual Report. We continue to believe that the worst case scenario we
described in our 1998 Annual Report is not likely to occur. However, if it
occurs, Y2K failures, if not corrected on a timely basis or otherwise mitigated
by our contingency plans, could have a material adverse effect on our results of
operations, liquidity and overall financial condition.
As of the end of the first quarter of 1999, we completed modifications or
upgrading to 98% of the corporate financial applications and 99% of the
industrial automation systems that required such work. We are not able to
complete a small percentage of upgrades until our vendors provide the required
equipment. We expect to complete the last of these upgrades by July, 1999. If
these upgrades are delayed beyond that date, we will use contingency plans to
work around any non-compliant systems or seek alternative vendors, as
appropriate. We are approximately 80% through the effort required to review our
critical suppliers and customers and develop contingency plans, as required. If
we cannot satisfy ourselves that these critical suppliers and customers will be
able to operate in 2000, we will seek alternatives and/or use contingency plans.
We are also evaluating the business resumption plans of all of our business
units for any Year 2000 issues. This effort is approximately 80% complete. We
expect to complete the testing of these plans by July, 1999.
During the first of quarter 1999, we spent $7 million in readying our systems
for Y2K, bringing our total spent to date to $44 million. We continue to
estimate that our costs to ready our systems for Y2K will be no more than $75
million.
* * * * * *
- 13 -
<PAGE>
FORWARD-LOOKING STATEMENTS
- --------------------------
Portions of the foregoing discussion of RESULTS OF OPERATIONS; REORGANIZATIONS,
RESTRUCTURINGS AND EMPLOYEE SEVERANCE PROGRAMS; EURO CONVERSION; and, YEAR 2000
contain "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
These statements are based on our current expectations, estimates and
projections. Therefore, they could ultimately prove to be inaccurate. Factors
which could affect our expectations for worldwide crude oil production and
downstream margins in 1999 are changes in business conditions, such as energy
prices, world economic conditions, demand growth and inventory levels. The
extent and timing of our anticipated cost savings and reorganization programs
will depend upon worldwide and industry economic conditions. Factors that could
alter the financial impact of our euro conversion include: changes in current
governmental regulations and interpretations of such regulations; unanticipated
implementation costs; and the effect of the euro conversion on product prices
and margins. Factors that could affect our ability to be Year 2000 compliant by
the end of 1999 include: the failure of our customers, suppliers, governmental
entities and others to achieve compliance and the inaccuracy of certifications
received from them; our inability to identify and remediate every possible
problem; and a shortage of necessary programmers, hardware and software. For a
further discussion of additional factors that could cause actual results to
materially differ from those in the forward-looking statements, please refer to
the section entitled "Forward-Looking Statements and Factors That May Affect Our
Business" in our 1998 Annual Report on Form 10-K.
- 14 -
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
- -------------------------
We have provided information about legal proceedings pending against Texaco
in Note 4 to the Consolidated Financial Statements of this Form 10-Q and in Item
3 of our 1998 Annual Report on Form 10-K. Note 4 of this Form 10-Q and Item 3 of
our 1998 Form 10-K are incorporated here by reference.
The Securities and Exchange Commission ("SEC") requires us to report
proceedings that were instituted or contemplated by governmental authorities
against us under laws or regulations relating to the protection of the
environment. None of these proceedings is material to our business or financial
condition. Following is a brief description of two proceedings that were
instituted during the first quarter of 1999.
o By letter dated March 3, 1999, the San Joaquin Valley Unified Air Pollution
Control District demanded penalties of $1.4 million for alleged violations
of that agency's air quality regulations at our producing fields in
Bakersfield, California. We are contesting the allegations.
o In January, 1999, the U.S. Department of Justice filed suit in U.S.
District Court in Nevada against Nevada Cogeneration Associates #1 and
Nevada Cogeneration Associates #2. Each defendant is a partnership in which
we hold a 50% interest. The suit seeks up to $230 million in penalties
under the Clean Air Act for alleged emissions from cogeneration facilities
in Clark County, Nevada. The partnerships are contesting the allegations.
Item 4. Submission of Matters to a Vote of Security Holders
- -----------------------------------------------------------
We held our Annual Meeting of Stockholders on April 27, 1999, for the purpose of
(1) electing five directors, (2) approving the appointment of auditors for 1999,
(3) approving an amendment to our Certificate of Incorporation, (4) acting on a
stockholder proposal relating to an independent chairperson, and (5) acting on a
stockholder proposal relating to classification of our Board of Directors. The
following summarizes the voting results:
Item (1). Stockholders elected Michael C. Hawley, Charles R. Shoemate, Robin B.
Smith and William C. Steere, Jr., each for a three-year term expiring at the
2002 Annual Meeting and A. Charles Baillie for a one-year term expiring at the
2000 Annual Meeting. The vote for each director was as follows:
<TABLE>
<CAPTION>
Director Votes For % of Vote Votes Withheld
-------- --------- --------- --------------
<S> <C> <C> <C>
A. Charles Baillie 462,020,776 98.3% 8,033,299
Michael C. Hawley 461,982,045 98.3% 8,072,030
Charles R. Shoemate 462,303,914 98.4% 7,750,161
Robin B. Smith 461,296,502 98.1% 8,757,573
William C. Steere, Jr. 462,023,036 98.3% 8,031,039
</TABLE>
Directors continuing in office were Peter I. Bijur, Mary K. Bush, Edmund M.
Carpenter, Franklyn G. Jenifer, Sam Nunn, Charles H. Price, II and Thomas A.
Vanderslice.
Item (2). The appointment of Arthur Andersen LLP to audit the accounts of the
company and its subsidiaries for the fiscal year 1999 was approved.
<TABLE>
<CAPTION>
Votes For (% of voted) Votes Against (% of voted) Abstained
---------------------- -------------------------- ---------
<S> <C> <C> <C> <C> <C>
464,538,299 (99.3%) 3,321,596 (0.7%) 2,194,180
</TABLE>
- 15 -
<PAGE>
Item (3). The proposal to approve an amendment to our Certificate of
Incorporation to increase the number of authorized shares of Common Stock of
Texaco Inc. from 700 million to 850 million was approved. Results are as
follows:
<TABLE>
<S> <C> <C>
Common and Series B For 444,452,793 (80.5%)
(% of issued and outstanding Common and Series B)
Common and Series B Against 22,850,471 (4.1%)
(% of issued and outstanding Common and Series B)
Common and Series B Abstained 2,750,811
Common For 430,239,176 (80.3%)
(% of issued and outstanding Common)
Common Against 20,838,684 (3.9%)
(% of issued and outstanding Common)
</TABLE>
Item (4). The stockholder proposal relating to an independent chairperson was
rejected.
<TABLE>
<CAPTION>
Votes For (% of voted) Votes Against (% of voted) Abstained
---------------------- -------------------------- ---------
<S> <C> <C> <C> <C> <C>
87,213,428 (22.1%) 306,855,079 (77.9%) 7,716,299
</TABLE>
Item (5). The stockholder proposal relating to the classification of the Board
of Directors was rejected.
<TABLE>
<CAPTION>
Votes For (% of voted) Votes Against (% of voted) Abstained
---------------------- -------------------------- ---------
<S> <C> <C> <C> <C> <C>
192,364,198 (48.7%) 202,789,184 (51.3%) 6,636,225
</TABLE>
Item 5. Other Information
- -------------------------
<TABLE>
<CAPTION>
(Unaudited)
-----------------------
For the three months
ended March 31,
-----------------------
1999 1998
---- ----
(Millions of dollars)
<S> <C> <C>
CAPITAL AND EXPLORATORY EXPENDITURES
Exploration and production
United States $256 $ 442
International 222 290
---- -----
Total 478 732
---- -----
Refining, marketing and distribution
United States 73 88
International 77 99
---- -----
Total 150 187
---- -----
Global gas marketing 11 34
---- -----
Total operating segments 639 953
Other business units 30 14
---- -----
Total $669 $ 967
==== =====
</TABLE>
- 16 -
<PAGE>
<TABLE>
<CAPTION>
(Unaudited)
--------------------
For the three months
ended March 31,
--------------------
1999 1998
---- ----
<S> <C> <C>
OPERATING DATA
Exploration and Production
United States
Net production of crude oil and natural
gas liquids (000 BPD) 406 452
Net production of natural gas - available
for sale (000 MCFPD) 1,487 1,738
------ ------
Total net production (000 BOEPD) 654 742
Natural gas sales (000 MCFPD) 3,579 3,882
Average U.S. crude (per bbl) $ 9.11 $11.78
Average U.S. natural gas (per mcf) $ 1.79 $ 2.14
Average WTI (Spot) (per bbl) $13.15 $15.92
Average Kern (Spot) (per bbl) $ 7.65 $ 8.89
International
Net production of crude oil and natural
gas liquids (000 BPD)
Europe 130 158
Indonesia 180 155
Partitioned Neutral Zone 116 108
Other 67 70
------ ------
Total 493 491
Net production of natural gas - available
for sale (000 MCFPD)
Europe 286 258
Colombia 153 208
Other 111 123
------ ------
Total 550 589
------ ------
Total net production (000 BOEPD) 585 589
Natural gas sales (000 MCFPD) 565 777
Average International crude (per bbl) $ 9.88 $11.95
Average International natural gas (per mcf) $ 1.51 $ 1.62
Average U.K. natural gas (per mcf) $ 2.64 $ 2.65
Average Colombia natural gas (per mcf) $ .65 $ .91
Worldwide
Total worldwide net production (MBOEPD) 1,239 1,331
</TABLE>
- 17 -
<PAGE>
<TABLE>
<CAPTION>
(Unaudited)
--------------------
For the three months
ended March 31,
--------------------
1999 1998
---- ----
<S> <C> <C>
OPERATING DATA
Refining, Marketing and Distribution
United States
Refinery input (000 BPD)
Equilon area 365 374
Motiva area 302 313
----- -----
Total 667 687
Refined product sales (000 BPD)
Equilon area 596 532
Motiva area 355 333
Other operations 307 234
----- -----
Total 1,258 1,099
International
Refinery input (000 BPD)
Europe 368 374
Caltex area 438 437
Latin America/West Africa 71 57
----- -----
Total 877 868
Refined product sales (000 BPD)
Europe 638 564
Caltex area 672 593
Latin America/West Africa 479 428
Other 103 49
----- -----
Total 1,892 1,634
</TABLE>
- 18 -
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
- ----------------------------------------
(a) Exhibits
-- (3.1) Copy of Restated Certificat of Incorporation of Texaco
Inc., as amended to and including April 27, 1999, including
Certificate of Designations, Preferences and Rights of Series B
ESOP Convertible Preferred Stock, Series D Junior Participating
Preferred Stock and Series G, H, I and J Market Auction
Preferred Shares.
-- (3.2) Copy of By-Law of Texaco Inc., as amended to and including
April 27, 1999.
-- (11) Computation of Earnings Per Share of Common Stock.
-- (12) Computation of Ratio of Earnings to Fixed Charges of Texaco on
a Total Enterprise Basis.
-- (20) Copy of Texaco Inc.'s Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 (including portions of
Texaco Inc.'s Annual Report to Stockholders for the year 1998),
as previously filed by the Registrant with the Securities and
Exchange Commission, File No. 1-27.
-- (22) Information relative to the various matters submitted to a
vote of security holders are described on pages 10 through 18
of the 1999 Proxy Statement of Texaco Inc., relating to the
Annual Meeting of Stockholders held on April 27, 1999, as
previously filed by the Registrant with the Securities and
Exchange Commission, File No. 1-27.
-- (27) Financial Data Schedule for the three months ended March 31,
1999.
b) Reports on Form 8-K:
During the first quarter of 1999, we filed Current Reports on Form 8-K for
the following events:
1. January 8, 1999
Item 5. Other Events -- reported that Texaco issued a Press Release to
announce a reduction in its 1999 capital and exploratory spending plan
and acceleration of its cost reduction program. Texaco also issued
another Press Release to announce fourth quarter, 1998 charges.
2. January 26, 1999
Item 5. Other Events -- reported that Texaco issued an Earnings Press
Release for the fourth quarter and year 1998.
- 19 -
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Texaco Inc.
---------------------
(Registrant)
By: G.J. Batavick
---------------------
(Comptroller)
By: R.E. Koch
---------------------
(Assistant Secretary)
Date: May 14, 1999
------------
-20 -
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
TEXACO INC.
(as amended to and including April 27, 1999)
A Restated Certificate of Incorporation was duly adopted by the Board of
Directors of Texaco Inc. on April 27, 1990, pursuant to Section 245 of the
General Corporation Law of the State of Delaware and was amended on December 22,
1992, November 9, 1994, September 10, 1997, March 2, 1999 and April 27, 1999.
This document only restates and integrates the provisions of the Company's
Restated Certificate of Incorporation as heretofore amended or supplemented.
The Company was incorporated under the laws of Delaware on August 26,
1926, as The Texas Corporation.
I.
The name of this Company is TEXACO INC.
II.
Its principal office in the State of Delaware is located at 32 Loockerman
Square, Suite L-100, in the City of Dover, County of Kent, and the name of its
resident agent is The Prentice-Hall Corporation System, Inc., whose address is
32 Loockerman Square, Suite L-100, Dover, Delaware.
III.
The objects or purposes for which the Company is formed and the nature of
the business to be carried on, any one or all of which it may pursue in the
United States of America and the states, districts, territories and possessions
thereof and in foreign countries, are as follows:
A. to engage in and carry on the petroleum business and the various
branches thereof, including the extraction, production, storage, transportation,
purchase and sale of oil and gas, natural gas liquids, shale and other
hydrocarbon substances and their products and by-products, and refining,
treating, applying, compounding, processing and otherwise preparing them for
market;
B. to engage in and carry on any other business, without limit as to kind
and whether or not related to, similar to or different from, the petroleum
business, including but not limited to, the businesses of mining, manufacturing,
processing, storage, construction, service, transportation and merchandising;
C. to acquire, own, hold, enjoy, lease, deal in, operate, dispose of and
convey real and personal property of every kind and description, rights and
interests therein, and the business, property, assets and good will of any
person, partnership, association, firm, corporation or other entity;
D. to acquire, own, hold, enjoy, deal in and sell, transfer or otherwise
dispose of stock, bonds, notes and other securities, as well as accounts,
contracts and evidences of indebtedness of any person, partnership, association,
firm, corporation or other entity, in whatsoever business or activity engaged
and whether private or public in character, and to exercise all rights in
respect thereto;
1
<PAGE>
E. to make secured and unsecured loans, with or without interest, to
assume or guarantee the stock, bonds, and obligations of, or otherwise to
assist, any person, partnership, association, firm, corporation or other entity,
in whatsoever business or activity engaged and whether public or private in
character, when so doing, in the opinion of the Board of Directors, would tend
to promote the business of this Company;
F. to acquire, own, hold, enjoy, grant, deal in, transfer, sell or
otherwise dispose of intangible property of every kind and description,
including, without limitation, patents, patent rights, trademarks, trade names,
copyrights, licenses, formulae and chooses in action of any kind;
G. to do all and everything useful in or incidental to the accomplishment
of the objects and purposes herein stated, as principal, agent, contractor,
trustee, or otherwise, either alone or in association with others, to the same
extent and as fully as could natural persons.
No enumeration of specific objects, purposes or powers, or particular
description of business in this article shall be held to limit or restrict in
any manner those enumerations or descriptions which are general in their
character, and the objects, powers and descriptions of one section shall in no
wise be limited or restricted by reference to or inference from the terms of any
other section.
IV.
The total number of shares of all classes of stock which the Company shall
have authority to issue is 880,000,000 shares, consisting of 30,000,000 shares
of Preferred Stock of the par value of $1.00 each and 850,000,000 shares of
Common Stock of the par value of $3.125 each.
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions of the Preferred Stock and the
Common Stock are as follows:
(A) The Preferred Stock may be issued from time to time in one or more
series. Subject to the limitations set forth herein and any limitations
prescribed by law, the Board of Directors is expressly authorized, prior to
issuance of any series of Preferred Stock, to fix by resolution or resolutions
providing for the issue of any series the number of shares included in such
series and the designation, relative powers, preferences and rights, and the
qualifications, limitations or restrictions of such series. Pursuant to the
foregoing general authority vested in the Board of Directors, but not in
limitation of the powers conferred on the Board of Directors thereby and by the
General Corporation Law of the State of Delaware, the Board of Directors is
expressly authorized to determine with respect to each series of Preferred
Stock:
1. the designation or designations of such series and the number of
shares (which number from time to time may be decreased by the Board of
Directors, but not below the number of such shares of such series then
outstanding, or may be increased by the Board of Directors unless
otherwise provided in creating such series) constituting such series;
2. the rate or amount and times at which, and the preferences and
conditions under which, dividends shall be payable on shares of such
series, the status of such dividends as cumulative or
non-cumulative, the date or dates from which dividends, if cumulative,
shall accumulate, and the status of such as participating or
non-participating after the payment of dividends as to which such shares
are entitled to any preference;
2
<PAGE>
3. the rights and preferences, if any, of the holders of shares of
such series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the Company, which amount
may vary depending upon whether such liquidation, dissolution or winding
up is voluntary or involuntary and, if voluntary, may vary at different
dates, and the status of the shares of such series as participating or
non-participating after the satisfaction of any such rights and
preferences;
4. the full or limited voting rights, if any, to be provided for
shares of such series, in addition to the voting rights provided by law;
5. the times, terms and conditions, if any, upon which shares of
such series shall be subject to redemption, including the amount the
holders of shares of such series shall be entitled to receive upon
redemption (which amount may vary under different conditions or at
different redemption dates) and the amount, terms, conditions and manner
of operation of any purchase, retirement or sinking fund to be provided
for the shares of such series;
6. the rights, if any, of holders of shares of such series to
convert such shares into, or to exchange such shares for, shares of any
other class or classes or of any other series of the same class, the
prices or rates of conversion or exchange, and adjustments thereto, and
any other terms and conditions applicable to such conversion or exchange;
7. the limitations, if any, applicable while such series is
outstanding on the payment of dividends or making of distributions on, or
the acquisition or redemption of, Common Stock or any other class of
shares ranking junior, either as to dividends or upon liquidation, to the
shares of such series;
8. the conditions or restrictions, if any, upon the issue of any
additional shares (including additional shares of such series or any other
series or of any other class) ranking on a parity with or prior to the
shares of such series either as to dividends or upon liquidation; and
9. any other relative powers, preferences and participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, of shares of such series;
in each case, so far as not inconsistent with the provisions of this Certificate
of Incorporation or the General Corporation Law of the State of Delaware as then
in effect. All shares of Preferred Stock shall be identical and of equal rank
except in respect to the particulars that may be fixed by the Board of Directors
as provided above, and all shares of each series of Preferred Stock shall be
identical and of equal rank except as to the times from which cumulative
dividends, if any, thereon shall be cumulative.
B. Pursuant to the authority conferred upon the Board of Directors by the
Restated Certificate of Incorporation, the Board of Directors has created the
following series of Preferred Stock, with the following voting powers,
preferences and relative, participating, optional or other special rights, and
the following qualifications, limitations or restrictions.
3
<PAGE>
Series B ESOP Convertible Preferred Stock
SECTION 1. Designation and Amount; Special Purpose Restricted Transfer
Issue.
(A) The shares of such series shall be designated as "Series B ESOP
Convertible Preferred Stock" ("Series B Preferred Stock") and the number of
shares constituting such series shall be 833,333 1/3.
(B) Shares of Series B Preferred Stock shall be issued only to State
Street Bank and Trust Company, as trustee (the "Trustee") of the employee stock
ownership plan feature of the Employees Thrift Plan of the Company (the "Plan").
All references to the holder of shares of Series B Preferred Stock shall mean
the Trustee or any successor trustee under the Plan. In the event of any
transfer of record ownership of shares of Series B Preferred Stock to any person
other than any successor trustee under the Plan, the shares of Series B
Preferred Stock so transferred, upon such transfer and without any further
action by the Company or the holder thereof, shall be automatically converted
into shares of Common Stock 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 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. In the event of such a conversion, the
transferee of the shares of Series B Preferred Stock shall be treated for all
purposes as the record holder of the shares of Common Stock into which such
shares of Series B Preferred Stock have been automatically converted as of the
date of such transfer. Certificates representing shares of Series B Preferred
Stock shall bear a legend 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 Distribution.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series B Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, cash dividends ("Preferred Dividends") in an amount per
share equal to $57.00 per share per annum, and no more, payable semiannually in
arrears, one-half on the 20th day of December and one-half on the 20th day of
June of each year (each a "Dividend Payment Date") commencing on June 20, 1989,
to holders of record at the start of business on such Dividend Payment Date. 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, but
Preferred Dividends accrued after issuance on the shares of Series B Preferred
Stock for any period less than a full semiannual period between Dividend Payment
Dates shall be computed on the basis of a 360-day year of 30-day months. 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.
4
<PAGE>
(B) So long as any shares of 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, 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
period on the Series B Preferred Stock and accumulated and unpaid 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 apart for payment;
provided, however, that the foregoing shall not apply to (i) any dividend
payable solely in any shares of any stock ranking, as to dividends and as to
distributions in the event of a liquidation, dissolution or winding up of the
Company, junior to the Series B Preferred Stock or (ii) the acquisition of
shares of any stock ranking, as to dividends or as to distributions in the event
of a liquidation, dissolution or winding up of the Company, junior to the Series
B Preferred Stock in exchange solely for shares of any other stock ranking, as
to dividends and as to distributions in the event of a liquidation, dissolution
or winding up of the Company, junior to the Series B Preferred Stock.
SECTION 3. Voting Rights.
The holders of shares of Series B Preferred Stock shall have the following
voting rights:
(A) The holders of Series B Preferred Stock shall be entitled to vote on
all matters submitted to a vote of the stockholders of the Company, voting
together with the holders of Common Stock as one class. The holder of each share
of Series B Preferred Stock shall be entitled to a number of votes equal to the
number of shares of Common Stock into which such share 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 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; provided, however, that the vote of at least 66 2/3% of the outstanding
shares of Series B Preferred Stock, voting separately as a series, shall be
necessary to adopt any alteration, amendment or repeal of any provision of the
Restated Certificate of Incorporation of the Company, as amended, or this
Resolution (including any such alteration, amendment or repeal effected by any
merger or consolidation in which the Company is the surviving or resulting
corporation), if such amendment, alteration or repeal would alter or change the
powers, preferences or special rights of the shares of Series B Preferred Stock
so as to affect them adversely.
5
<PAGE>
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 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 $600 per share, 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 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 paragraph 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, lease, exchange or other transfer 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 prior to the close of business on the 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 $600 to the amount which initially shall be $60 and
which shall be adjusted as hereinafter provided (and, as so adjusted, is
hereinafter sometimes referred to as the "Conversion Price") (that is, a
conversion rate initially equivalent to ten shares of Common Stock for each
share of Series B Preferred Stock so converted, which is subject to adjustment
as the Conversion Price is adjusted as hereinafter provided).
(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
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<PAGE>
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 is
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 of 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, solely for issuance upon the conversion of
shares of Series B Preferred Stock as herein provided, free from any preemptive
rights, such number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all the shares of Series B Preferred Stock then
outstanding. Nothing contained herein shall preclude the Company from issuing
shares of Common Stock held in its treasury upon the conversion of shares of
Series B Preferred Stock into Common Stock pursuant to the terms hereof. The
Company shall prepare and shall use its best efforts to obtain and keep in force
such governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all requirements as to registration or
qualification of the Common Stock, in order to enable the
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<PAGE>
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.
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 December 20, 1991, or at any time
after the date of issuance, if permitted by paragraph (D) of this Section 6, at
the following redemption prices per share:
<TABLE>
<CAPTION>
During the Twelve-
Month Period Price Per
Beginning December 20 Share
<S> <C>
1988 $ 657.00
1989 $ 651.30
1990 $ 645.60
1991 $ 639.90
1992 $ 634.20
1993 $ 628.50
1994 $ 622.80
1995 $ 617.10
1996 $ 611.40
1997 $ 605.70
</TABLE>
and thereafter at $600 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 (F) of this Section
6. From and after the date fixed for redemption, dividends on shares of Series B
Preferred Stock called for redemption will cease to accrue, such shares will no
longer be deemed to be outstanding and all rights in respect of such shares of
the Company shall cease, except the right to receive the redemption price. If
less than all of the outstanding shares of Series B Preferred Stock are to be
redeemed, the Company shall either redeem a portion of the shares of each holder
determined pro rata based on the number of shares held by each holder or shall
select the shares to be redeemed by lot, as may be determined by the Board of
Directors of the Company.
(B) Unless otherwise required by law, notice of redemption 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, and the Conversion
Price and number of shares of Common Stock issuable upon conversion of a share
of Series B Preferred Stock at the time. Upon surrender of the certificate 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
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<PAGE>
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) In the event of a change in the federal tax law of the United States
of America which has the effect of precluding the Company from claiming any of
the tax deductions for dividends paid on the Series B Preferred Stock when such
dividends are used as provided under Section 404(k) (2) of the Internal Revenue
Code of 1986, as amended and in effect on the date shares of Series B Preferred
Stock are initially issued, the Company may, in its sole discretion and
notwithstanding anything to the contrary in paragraph (A) of this Section 6,
elect to redeem any or all of such shares for the amount payable in respect of
the shares upon liquidation of the Company pursuant to Section 4 hereof.
(D) Notwithstanding anything to the contrary in paragraph (A) of this
Section 6, the Company may elect to redeem any or all of the shares of Series B
Preferred Stock at any time on or prior to December 20, 1991, on the terms and
conditions set forth in paragraphs (A) and (B) of this Section 6, if the last
reported sales price, regular way, of a share of Common Stock, as reported on
the New York Stock Exchange Composite Tape or, if the Common Stock is not listed
or admitted to trading on the New York Stock Exchange, on the principal national
securities exchange on which such stock is listed or admitted to trading or, if
the Common Stock is not listed or admitted to trading on any national securities
exchange, on the National Market System of the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or, if Common
Stock is not quoted on such National Market System, the average of the closing
bid and asked prices in the over-the-counter market as reported by NASDAQ, for
at least twenty (20) trading days within a period of thirty (30) consecutive
trading days ending within five (5) days of the notice of redemption, equals or
exceeds one hundred fifty percent (150%) of the Conversion Price (giving effect
in making such calculation to any adjustments required by Section 9 hereof).
(E) In the event that the Plan is terminated in accordance with its
terms, and notwithstanding anything to the contrary in paragraph (A) of this
Section 6, the Company shall, as soon thereafter as practicable, call for
redemption all then outstanding shares of Series B Preferred Stock for the
amount payable in respect of the shares upon liquidation of the Company pursuant
to Section 4 hereof.
(F) The Company, at its option, may make payment of the redemption price
required upon redemption of shares of Series B Preferred Stock in cash or in
shares of Common Stock, or in a combination of such shares and cash, any such
shares of Common Stock to be valued for such purposes at their Fair Market Value
(as defined in paragraph (G) of Section 9 hereof).
SECTION 7. Other Redemption Rights.
Shares of Series B Preferred Stock shall be redeemed by the Company for
cash or, if the Company so elects, in shares of Common Stock, or a combination
of such shares and cash, any such shares of Common Stock to be valued for such
purpose as provided by paragraph (F) of Section 6, at a redemption price of $600
per share plus 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, upon certification
by such holder to the Company of the following events: (i) when and to the
extent necessary 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) when and
to the extent necessary for such holder to make any payments of principal,
interest or premium due and payable (whether as scheduled or upon acceleration)
under the Loan
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<PAGE>
Agreement among the Trustee, certain banking parties thereto (collectively, the
"Banks") and Chase Manhattan Bank (National Association), as agent for the Banks
or any indebtedness incurred by the holder for the benefit of the Plan; or (iii)
in the event that the Plan is not initially determined by the Internal Revenue
Service to be qualified within the meaning of Sections 401(a) and 4975(e)(7) of
the Internal Revenue Code of 1986, as amended.
SECTION 8. Consolidation, Merger, etc.
(A) In the event that the Company shall consummate any consolidation or
merger or similar business combination, 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
corporation (including the Company) that constitutes "qualifying employer
securities" with respect to a holder of Series B Preferred Stock within the
meaning of Section 409(l) of the Internal Revenue Code of 1986, as amended, and
Section 407(d)(5) of the Employee Retirement Income Security Act of 1974, as
amended, 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, in connection with such consolidation, merger or
similar business combination, be assumed by and shall become preferred stock of
such successor or resulting corporation, having in respect of such corporation,
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 Section 5 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; provided, however, that if by virtue of
the structure of such transaction, a holder of Common Stock is required to make
an election with respect to the nature and kind of consideration to be received
in such transaction, which election cannot practicably be made by the holders of
the Series B Preferred Stock, then the shares 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 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 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, then the kind and
amount so receivable upon such transaction for each non-electing share shall be
the kind and amount so receivable per share by the plurality of the non-electing
shares). The rights of the Series B Preferred Stock as preferred stock of such
successor or resulting corporation shall successively be subject to adjustments
pursuant to Section 9 hereof after any such transaction as nearly equivalent as
practicable to the adjustment provided for by such section prior to such
transaction. The Company shall not consummate any such merger, consolidation or
similar transaction unless all then outstanding shares of Series B Preferred
Stock shall be assumed and authorized by the successor or resulting corporation
as aforesaid.
(B) In the event that the Company shall consummate any consolidation or
merger or similar business combination, 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
10
<PAGE>
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; provided, however, that if by
virtue of the structure of such transaction, a holder of Common Stock is
required to make an election with respect to the nature and kind of
consideration to be received in such transaction, which election cannot
practicably be made by the holders of the Series B Preferred Stock, then the
shares 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 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, then the kind and
amount of stock, securities, cash or other property receivable upon such
transaction for each non-electing share shall be the kind and amount so
receivable per share by a plurality of the non-electing shares).
(C) In the event the Company shall enter into any agreement providing
for any consolidation or merger or similar business combination described in
paragraph (B) of this Section 8, then the Company shall as soon as practicable
thereafter (and in any event at least ten (10) business days before consummation
of such transaction) give notice of such agreement and the material terms
thereof to each holder of Series B Preferred Stock and each such holder shall
have the right to elect, by written notice to the Company, to receive, upon
consummation of such transaction (if and when such transaction is consummated),
from the Company or the successor of the Company, 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 liquidation of the Company
pursuant to Section 4 thereof. No such notice of redemption shall be effective
unless given to the Company prior to the close of business on the fifth 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 fifth 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 the 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, the Conversion Price in
effect immediately prior to such action shall be adjusted by multiplying such
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<PAGE>
Conversion Price by a 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 stockholders 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 any security convertible into or exchangeable for shares of
Common Stock) 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 a 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 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) and other than 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 Fair Market Value of such
shares on the date of 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 (a) 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 (b) 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 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) and
other than 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
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<PAGE>
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 a
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 Corporation
would receive upon exercise in full of all such rights or warrants, and the
denominator of which shall be the product of (a) 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 (b) 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 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 hereof) 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.
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(E) Notwithstanding any other provisions of this Section 9, the Company
shall not be required to make any adjustment to 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. 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 the holders of
the Common Stock.
(G) For purposes of this Resolution, the following definitions shall
apply:
"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
are not required to be open.
"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 any day shall mean the last reported sales price, regular way, or, in
the event that no sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in either case as reported on the New
York Stock Exchange Composite Tape or, if such security is not listed or
admitted to trading on the New York Stock Exchange, on the principal national
securities exchange on which such security is listed or admitted to trading or,
if not listed or admitted to trading on any national securities exchange, on the
NASDAQ National Market System or, if such security is not quoted on such
National Market System, the average of the closing bid and asked prices on each
such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for such security on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a market
in such security selected for such purpose by the Board of Directors of the
Company or a committee thereof, in each case, on each trading day during the
Adjustment Period. "Adjustment Period" shall mean the period of five (5)
consecutive 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 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
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determination, as determined in good faith by the Board of Directors of the
Company or such committee.
"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 twelve and
one-half percent (12 1/2%) of the aggregate Fair Market Value of all shares of
Common Stock outstanding on the day before the ex-dividend date with respect to
such 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, and/or (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) or (C) 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 equal to 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 12-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 of such shares or
securities for each day of the Adjustment Period. "Non-Dilutive Amount" in
respect of an issuance, sale or exchange by the Corporation 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 public 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 pursuant to
such right or warrant to purchase or acquire such maximum number of shares of
Common Stock; provided, however, that in no event shall the Non-Dilutive Amount
be less than zero. For purposes of the foregoing sentence, in the case of a
security convertible into or exchangeable for shares of Common Stock, the amount
payable pursuant to a right or warrant to purchase or acquire shares of Common
Stock shall be the Fair Market Value of such security on the date of the
issuance, sale or exchange of such security by the Company.
"Pro Rata Repurchase" shall mean any purchase of shares of Common Stock by
the Company or any subsidiary thereof, whether for cash, shares of capital stock
of the Company, other securities of the Company, evidences of indebtedness of
the Company or any other person or any other property (including shares of a
subsidiary of the Company), or any combination thereof, effected while any of
the shares of Series B Preferred Stock are outstanding, pursuant to any tender
offer or exchange offer subject to Section 13(e) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any successor provision of law, or
pursuant to any other offer available to substantially all holders of
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Common Stock; provided, however, that no purchase of shares by the Company, or
any subsidiary thereof made in open market transactions shall be deemed a Pro
Rata Repurchase. For purposes of this paragraph 9(G), shares shall be deemed to
have been purchased by the Company or any subsidiary thereof "in open market
transactions" if they have been purchased substantially in accordance with the
requirements of Rule 10b-18 as in effect under the Exchange Act, on the date
shares of Series B Preferred Stock are initially issued by the Company or on
such other terms and conditions as the Board of Directors of the Company or a
committee thereof shall have determined are reasonably designed to prevent such
purchases from having a material effect on the trading market for the Common
Stock.
(A) Whenever an adjustment to the Conversion Price and the related
voting rights of the Series B Preferred Stock is required pursuant to this
Resolution, the Company shall forthwith place on file with the transfer agent
for the Common Stock and the Series B Preferred Stock, 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 the Common Stock as
to the payment of dividends and the distribution of assets on liquidation,
dissolution and winding up of the Company, and, unless otherwise provided in the
Restated Certificate of Incorporation of the Company, as the same may be
amended, or a certificate of designations relating to a subsequent series of
Preferred Stock, par value $1.00 per share, of the Company, the Series B
Preferred Stock shall rank junior to all series of the Company's Preferred
Stock, par value $1.00 per share, as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up.
(B) 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 Delaware General Corporation Law (the "DGCL") if, as a result
thereof, the surplus of the Company for purposes of the DGCL 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) (C)(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, par value $1.00 per share, 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
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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 2000 Westchester Avenue,
White Plains, New York 10650 (Attention: 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, par value $6.25 per share, 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, or from par
value to no par value, or from no par value to 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, 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 the same may be 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
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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 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 or record of Series B Preferred
Stock.
Series D Junior Participating Preferred Stock
SECTION 1. Designation and Amount.
The shares of such series shall be designated as "Series D Junior
Participating Preferred Stock" and the number of shares constituting such series
shall be 3,000,000.
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 D Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series D Junior Participating Preferred 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 15th 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 D Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a) $5.00
or (b) subject to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends or other
distributions other than a dividend payable in shares of common stock, par value
$6.25 per share, of the Company (the "Common Stock") or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, since the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of Series D Junior
Participating Preferred Stock. In the event the Company shall at any time after
March 16, 1989 (the "Rights Declaration Date") (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount to which holders of shares
of Series D Junior Participating Preferred Stock were entitled immediately prior
to such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series D
Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
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during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $5.00 per share on the
Series D Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series D Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
D Junior Participating 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 D Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series D Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series D Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 45 days prior to the date fixed for the payment thereof.
SECTION 3. Voting Rights.
The holders of shares of Series D Junior Participating Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series D Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders of
the Company. In the event the Company shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the number of votes per share to which holders of shares of Series D Junior
Participating Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of shares
of Series D Junior Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Company.
(C) If at the time of any annual meeting of stockholders for the election
of directors, the equivalent of six quarterly dividends (whether or not
consecutive) payable on any share or shares of preferred stock are in default,
the number of directors constituting the Board of Directors of the Company shall
be increased by two. The holders of record of the Series D Junior Participating
Preferred Stock, voting separately as a class with the holders of shares of any
one or more other series of preferred stock upon which like voting rights have
been conferred, shall be entitled at said meeting of stockholders (and at each
subsequent annual meeting of stockholders), unless all dividends in arrears have
been paid or declared and set apart for payment prior thereto, to vote for the
election of two directors of the Company, the holders of any Series D Junior
Participating Preferred Stock being entitled
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to cast 100 votes per share of Series D Junior Participating Preferred Stock,
with the remaining directors of the Company to be elected by the holders of
shares of any other class or classes or series of stock entitled to vote
therefor. Until the default in payments of all dividends which permitted the
election of said directors shall cease to exist, any director who shall have
been so elected pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote of the holders
of the shares at the time entitled to cast a majority of the votes entitled to
be cast for the election of any such director at a special meeting of such
holders called for that purpose, and any vacancy thereby created may be filled
by the vote of such holders. If and when such default shall cease to exist, the
holders of the Series D Junior Participating Preferred Stock and the holders of
shares of any one or more series of preferred stock upon which like voting
rights have been conferred shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent like
default in payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been elected
directors pursuant to said special voting rights shall forthwith terminate, and
the number of directors constituting the Board of Directors shall be reduced by
two.
(D) Except as set forth herein, holders of Series D Junior Participating
Preferred Stock shall have no special voting rights and their consent shall not
be required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate action.
SECTION 4. Certain Restrictions.
(A) In the event that full cumulative dividends on the Series D Junior
Participating 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 D Junior Participating Preferred Stock until full cumulative
dividends on the Series D Junior Participating Preferred Stock shall have been
paid or declared and set apart 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 D
Junior Participating 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 D
Junior Participating Preferred Stock in exchange solely for shares of any other
stock ranking, as to dividends and as to distributions in the event of a
liquidation, dissolution or winding-up of the Company, junior to the Series D
Junior Participating Preferred Stock.
(B) The Company shall not permit any subsidiary of the Company to purchase
or otherwise acquire for consideration any shares of stock of the Company unless
the Company 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 D Junior Participating Preferred Stock purchased or
otherwise acquired by the Company 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
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resolution or resolutions of the Board of Directors, subject to the conditions
and restrictions on issuance set forth herein.
SECTION 6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or winding
up of the Company, 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 D Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series D Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series D Liquidation Preference"). Following the payment of
the full amount of the Series D Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series D Junior
Participating Preferred Stock unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series D Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in subparagraph
(C) below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number in clause (ii)
immediately above being referred to as the "Adjustment Number"). Following the
payment of the full amount of the Series D Liquidation Preference and the Common
Adjustment in respect of all outstanding shares of Series D Junior Participating
Preferred Stock and Common Stock, respectively, holders of Series D Junior
Participating Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to one (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 D Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series D Junior Participating Preferred Stock, then
such remaining assets shall be distributed ratably to 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 Company shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
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<PAGE>
SECTION 7. Consolidation, Merger, etc.
In case the Company 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 D Junior Participating
Preferred Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Company
shall at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series D Junior
Participating Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
SECTION 8. Redemption.
The outstanding shares of Series D Junior Participating Preferred Stock
may be redeemed at the option of the Board of Directors as a whole, or in part,
at any time, or from time to time, at a cash price per share equal to the
product of the Adjustment Number times the Average Market Value (as such term is
hereinafter defined) of the Common Stock on the date of mailing of the notice of
redemption, plus all dividends which on the redemption date have accrued on the
shares to be redeemed and have not been paid, or declared and a sum sufficient
for the payment thereof set apart, without interest. The "Average Market Value"
as of a particular date is the average of the closing sale prices of the Common
Stock during the 10 consecutive Trading Day period immediately preceding such
date on the Composite Tape for New York Stock Exchange Listed Stocks, or, if
such stock is not quoted on the Composite Tape, on the New York Stock Exchange,
or, if such stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of 1934, as
amended, on which such stock is listed, or, if such stock is not listed on any
such exchange, the average of the closing sale prices with respect to a share of
Common Stock during such 10-day period, as quoted on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market value of the Common
Stock as determined by the Board of Directors in good faith. The term "Trading
Day" shall mean a day on which the principal national securities exchange on
which the Common Stock is listed or admitted to trading is open for the
transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, a Monday, Tuesday, Wednesday,
Thursday or Friday on which banking institutions in the State of New York are
not authorized or obligated by law or executive order to close.
SECTION 9. Ranking.
The Series D Junior Participating Preferred Stock shall rank junior to the
Company's Series B ESOP Convertible Preferred Stock, and shall rank junior to
all other series of the Company's Preferred Stock unless the terms of any such
other series shall provide otherwise, as to the payment of dividends and the
distribution of assets.
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<PAGE>
SECTION 10. Amendment.
The Restated Certificate of Incorporation of the Company shall not be
further amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series D Junior Participating Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of a majority or more of the outstanding shares of Series D Junior Participating
Preferred Stock, voting separately as a class.
SECTION 11. Fractional Shares.
Series D Junior Participating Preferred Stock may be issued in fractions
of a share which shall entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series D
Junior Participating Preferred Stock.
Market Auction Preferred Shares
SECTION 1. Designation; Amount and Series.
The Preferred Stock authorized hereby consists of 1,200 shares (each share
a series) designated as "Market Auction Preferred Shares" (referred to as the
"Auction Preferred", the "Preferred Stock" or the "Remarketing Preferred")
issuable in the following groups of series (each group a "Series"): 300 shares
designated "Market Auction Preferred Shares, Series G-1 through G-300" (the
"Series G Preferred Stock"), 300 shares designated "Market Auction Preferred
Shares, Series H-1 through H-300" (the "Series H Preferred Stock"), 300 shares
designated "Market Auction Preferred Shares, Series I-1 through I-300" (the
"Series I Preferred Stock") and 300 shares designated "Market Auction Preferred
Shares, Series J-1 through J-300" (the "Series J Preferred Stock"). Except as
expressly provided herein, each share of each separate Series of Auction
Preferred shall be identical and equal in all aspects to every other share of
such Series, and the shares of all of the Series shall be identical and equal in
all respects.
SECTION 2. Definitions.
Any references to Sections or subsections that are made in this part of
Article IV(B) shall be to Sections or subsections contained in this part of
Article IV(B). Unless the context or use indicates another or different meaning
or intent, the following terms shall have the following meanings when used in
this part of Article IV(B), whether used in the singular or plural:
"Act" means the Securities Act of 1933, as amended.
"Additional Payments" means an amount equal to the product of (i) the
Default Rate on the date on which such Failure to Deposit occurred (or, if such
Failure to Deposit relates to a failure to pay dividends other than at the end
of a Dividend Period, the Default Rate computed using the Percentage applicable
to the rating category below "baa3" or "BBB-" as of the Business Day immediately
preceding the Auction Date or the date of the immediately preceding Remarketing
for such shares), times (ii) a fraction, the numerator of which will be the
number of days during which such failure existed and was not cured as described
in Section 3(i)(B) (including the day such failure occurs and excluding the day
such failure is cured) and the denominator of which will be 360, times (iii) the
full
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<PAGE>
amount of the dividends required to be paid on the Dividend Payment Date with
respect to which such failure occurred.
"Affiliate" means any Person controlled by, in control of, or under common
control with, the Corporation.
"Applicable `AA' Composite Commercial Paper Rate", on any date, means, in
the case of any Dividend Period of (1) 1 to 48 days, the interest equivalent of
the 30-day rate, (2) 49 days or more but less than 70 days, the interest
equivalent of the 60-day rate, (3) 70 days or more but less than 85 days, the
arithmetic average of the interest equivalent of the 60-day and 90-day rates,
(4) 85 days or more but less than 120 days, the interest equivalent of the
90-day rate, (5) 120 days or more but less than 148 days, the arithmetic average
of the interest equivalent of the 90-day and 180-day rates, (6) 148 days or more
but less than 184 days, the interest equivalent of the 180-day rate, in each
case, on commercial paper placed on behalf of issuers whose corporate bonds are
rated "AA" by S&P or "Aa" by Moody's, or the equivalent of such rating by
another rating agency, as made available on a discount basis or otherwise by the
Federal Reserve Bank of New York for the Business Day immediately preceding such
date. In the event that the Federal Reserve Bank of New York does not make
available any of the foregoing rates, then such rates shall be the 30-day,
60-day, 90-day or 180-day rate or arithmetic average of such rates, as the case
may be, as quoted on a discount basis or otherwise, by the Commercial Paper
Dealers to the Auction Agent or the applicable Remarketing Agent as of the close
of business on the Business Day next preceding such date. If any Commercial
Paper Dealer does not quote a rate required to determine the Applicable "AA"
Composite Commercial Paper Rate, the Applicable "AA" Composite Commercial Paper
Rate shall be determined on the basis of the quotation or quotations furnished
by the remaining Commercial Paper Dealer (if any) and any Substitute Commercial
Paper Dealer or Substitute Commercial Paper Dealers selected by the Corporation
to provide such rate or rates or, if the Corporation does not select any
Substitute Commercial Paper Dealer or Substitute Commercial Paper Dealers, by
the remaining Commercial Paper Dealer (if any). For purposes of this definition,
the "interest equivalent" means the equivalent yield on a 360-day basis of a
discount-basis security to an interest-bearing security.
"Applicable Determining Rate" means (i) for any Dividend Period from 1 to
48 days, Standard Dividend Period or Short-Dividend Period of 183 days or less,
the Applicable "AA" Composite Commercial Paper Rate, (ii) for any Short Dividend
Period of 184 to 364 days, the Applicable Treasury Bill Rate and (iii) for any
Long Dividend Period, the Applicable Treasury Note Rate.
"Applicable Rate" means the dividend rate payable on a share of Preferred
Stock for any Dividend Period subsequent to the Initial Dividend Period for such
share established pursuant to Section 3 below.
"Applicable Treasury Bill Rate" for any Short Dividend Period in excess of
183 days and "Applicable Treasury Note Rate" for any Long Dividend Period, on
any date, means the interest equivalent of the rate for direct obligations of
the United States Treasury having an original maturity which is equal to, or
next lower than, the length of such Short Dividend Period or Long Dividend
Period, as the case may be, as published weekly by the Federal Reserve Board in
"Federal Reserve Statistical Release H.15(519)-Selected Interest Rates", or any
successor publication by the Federal Reserve Board, within 5 Business Days
preceding such date. In the event that the Federal Reserve Board does not
publish such rate, or if such release is not available, the Applicable Treasury
Bill Rate or Applicable Treasury Note Rate will be the arithmetic mean of the
secondary market bid rates as of approximately 3:30 P.M., New York City time, on
the Business Day next preceding such date of the U.S. Government Securities
Dealers furnished to the Auction Agent or the applicable Remarketing
24
<PAGE>
Agent for the issue of direct obligations of the United States Treasury, in an
aggregate principal amount of at least $250,000 with a remaining maturity equal
to, or next lower than, the length of such Short Dividend Period or Long
Dividend Period, as the case may be. If any U.S. Government Securities Dealer
does not quote a rate required to determine the Applicable Treasury Bill Rate or
the Applicable Treasury Note Rate, the Applicable Treasury Bill Rate or
Applicable Treasury Note Rate shall be determined on the basis of the quotation
or quotations furnished by the remaining U.S. Government Securities Dealer (if
any) or any Substitute U.S. Government Securities Dealer or Dealers selected by
the Corporation to provide such rate or rates or, if the Corporation does not
select any such Substitute U.S. Government Securities Dealer, by the remaining
U.S. Government Securities Dealer (if any); provided that, if the Corporation is
unable to cause such quotations to be furnished to the Auction Agent or the
applicable Remarketing Agent by such sources, the Corporation may cause such
rates to be furnished to the Auction Agent or the applicable Remarketing Agent
by such alternative source as the Corporation in good faith deems to be
reliable. For purposes of this definition, the "interest equivalent" of a rate
stated on a discount basis shall be equal to the quotient of (A) the discount
rate divided by (B) the difference between 1.00 and the discount rate.
"Articles of Incorporation" means the Restated Certificate of
Incorporation, as amended, of the Corporation.
"Auction" means each periodic implementation of the Auction Procedures.
"Auction Agent" means The Bank of New York, unless or until another bank
or trust company has been appointed as such by the Corporation.
"Auction Agent Agreement" has the meaning set forth in Section 8 below.
"Auction Date" means, for any Series of Auction Preferred, the first
Business Day preceding the first day of each Dividend Period for such Series
other than the Initial Dividend Period for such Series.
"Auction Method" means a method of determining Dividend Periods and
dividend rates for the Auction Preferred of a Series pursuant to the Auction
Procedures.
"Auction Preferred" means the Auction Preferred, including the Converted
Remarketing Preferred, being auctioned pursuant to the Auction Procedures.
"Auction Procedures" means the procedures for conducting Auctions set
forth in Section 7 below.
"Board of Directors" means the Board of Directors of the Corporation or
any duly authorized committee of the Board of Directors acting on behalf
thereof.
"Broker-Dealer" means any broker-dealer, or other entity permitted by law
to perform the functions required of a Broker-Dealer in these Auction
Procedures, that has been selected by the Corporation and has entered into a
Broker-Dealer Agreement with the Auction Agent that remains effective.
"Business Day" means a day on which the New York Stock Exchange is open
for trading and which is not a day on which banks in The City of New York are
authorized or obliged by law to close.
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<PAGE>
"Certificate of Designations" or "Certificate" means the Certificate of
Designations, Preferences and Rights of Market Auction Preferred Shares of the
Corporation dated and filed with the Delaware Secretary of State on December 22,
1992.
"Chief Financial Officer" has the meaning set forth in Section 3(g)(ii)
below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commercial Paper Dealers" means Morgan Stanley and First Boston or, in
lieu thereof, their respective affiliates or successors.
"Converted Auction Preferred" means shares of Auction Preferred which, by
reason of an election by the Method Selection Agent of a different Dividend
Determination Method, will become Remarketing Preferred at the end of the
then-current Dividend Period applicable thereto.
"Converted Remarketing Preferred" means shares of Remarketing Preferred
which, by reason of an election by the Method Selection Agent of a different
Dividend Determination Method, will become Auction Preferred at the end of the
then-current Dividend Period applicable thereto.
"Corporation" means Texaco Inc., a Delaware corporation, or its successor.
"Date of Original Issue", with respect to any share of Preferred Stock,
means the date on which the Corporation originally issued such share of
Preferred Stock.
"Default Period" has the meaning set forth in Section 6(b)(i) below.
"Default Rate" means the higher of (A) the Maximum Applicable Rate
obtained by multiplying the Applicable Determining Rate, determined as of the
Business Day next preceding the date of the Failure to Deposit that, pursuant to
Section 3(i), caused the application of such Default Rate, by the Percentage for
the rating category below "baa3" or "BBB-", and (B) (i) if the Corporation has
failed timely to pay dividends, the dividend rate in effect for the Dividend
Period in respect of which such Failure to Deposit occurred, or (ii) if the
Corporation has failed timely to pay the redemption price (including accumulated
and unpaid dividends) of shares of any Series of Preferred Stock called for
redemption, the dividend rate in effect on the date such redemption price was to
have been paid. The Percentage used to determine the Default Rate for any shares
of Preferred Stock shall be the Percentage for the rating category below "baa3"
or "BBB-" (i) in effect on the immediately preceding Auction Date or the date of
the immediately preceding Remarketing, in the case of a Default Rate that
applies to the portion of a Dividend Period occurring after a failure to pay
dividends and (ii) in effect on the date of determination, in all other cases.
"Depository Agreement" means each agreement among the Corporation, the
Remarketing Depository and a Remarketing Agent.
"Dividend Determination Method" or "Method" shall mean either the Auction
Method or the Remarketing Method.
"Dividend Payment Date" has the meaning set forth in Section 3(b)(iii)
below.
"Dividend Period" has the meaning set forth in Section 3(b)(v) below.
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<PAGE>
"Dividend Quarter" has the meaning set forth in Section 3(b)(iii) below.
"Dividends-Received Deduction" has the meaning set forth in Section
3(f)(v) below.
"Existing Holder" means a Person who has signed a Master Purchaser's
Letter and is listed as the beneficial owner of any shares of Auction Preferred
in the records of the Auction Agent.
"Failure to Deposit" means the failure by the Corporation to pay to the
Paying Agent by 11:00 A.M., New York City Time, in immediately available funds,
(i) on a Dividend Payment Date, the full amount of any dividend (whether or not
earned or declared) to be paid on such Dividend Payment Date on any shares of
Preferred Stock or (ii) on any redemption date, the full redemption price
(including accumulated and unpaid dividends), to be paid on such redemption date
for any shares of Preferred Stock.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"First Boston" means The First Boston Corporation.
"Holder" means an Existing Holder or any beneficial owner of Preferred
Stock acquired pursuant to a Remarketing.
"Initial Auction Date" means the Business Day immediately preceding the
first day of a Dividend Period for Auction Preferred.
"Initial Dividend Rate" has the meaning set forth in Section 3(g)(i)
below.
"Initial Dividend Period" means the periods commencing on the Date of
Original Issue and ending on the respective days immediately preceding the
Initial Dividend Payment Dates for each Series of Preferred Stock.
"Initial Dividend Payment Date" has the meaning set forth in Section 3(b)
below.
"Long Dividend Period" has the meaning set forth in Section 3(b)(v) below.
"Marketing Conditions" means the following factors: (i) short-term and
long-term market rates and indices of such short-term and long-term rates, (ii)
market supply and demand for short-term and long-term securities, (iii) yield
curves for short-term and long-term securities comparable to the Preferred
Stock, (iv) industry and financial conditions which may affect the Preferred
Stock, (v) the number of shares of Preferred Stock to be sold pursuant to an
Auction or a Remarketing, as the case may be, (vi) the number of potential
purchasers of Preferred Stock, (vii) the Dividend Periods and dividend rates at
which current and potential holders would remain or become holders, (viii)
current tax laws and administrative interpretations with respect thereto and
(ix) the Corporation's current and projected funding requirements based on its
asset and liability position, tax position and current financing objectives. If
Marketing Conditions are being assessed by the Chief Financial Officer, such
officer's evaluation of the factors described in clauses (vi) and (vii) above
may be based on discussions with one or more Broker-Dealers or Remarketing
Agents.
If Marketing Conditions are being assessed by the Term Selection Agent or
the Method Selection Agent, such agent's evaluation of the factor described in
clause (ix) above may be based on discussions with representatives of the
Corporation.
27
"Maximum Applicable Rate", as of any date, means the rate obtained by
multiplying the Applicable Determining Rate then in effect for a Dividend Period
by the Percentage (as it may be adjusted from time to time based on certain
factors by the Chief Financial Officer in accordance with the provisions hereof)
determined as set forth below based on the lower of the credit ratings assigned
to the Preferred Stock by Moody's and S&P.
<TABLE>
<CAPTION>
Credit Rating
- ------------------------------------------------------------------------------
<S> <C> <C>
Moody's S & P Percentage
"aa3" or Above AA- or Above 150%
"a3" to "a1" A- to A+ 200%
"baa3" to "baa1" BBB- to BBB+ 225%
Below "baa3" Below BBB 275%
</TABLE>
The Corporation will take all reasonable action necessary to enable
Moody's and S&P to provide ratings for the Preferred Stock. If either Moody's or
S&P does not make such rating available or neither Moody's nor S&P shall make
such a rating available, the Corporation will designate a rating agency or
rating agencies as a substitute rating agency or substitute rating agencies, as
the case may be, subject to the approval of Morgan Stanley and First Boston,
such approval not to be unreasonably withheld, and the Corporation will take all
reasonable action to enable such rating agency or rating agencies to provide a
rating or ratings for each Series of Preferred Stock. If either Moody's or S&P
shall change its rating categories for preferred stock, or if one or more
substitute rating agencies are designated, then the determination set forth
above will be made based upon the substantially equivalent new rating categories
for preferred stock of such rating agency or substitute rating agency.
"Memorandum" means the Private Placement Memorandum dated December 16,
1992 relating to the Corporation and the placement of the shares of Preferred
Stock.
"Method Selection Agent" means any entity appointed by the Corporation to
act on its behalf in selecting Dividend Determination Methods for a Series of
Preferred Stock, provided that if the Corporation shall appoint more than one
entity to so act with respect to a Series, "Method Selection Agent" shall mean,
unless the context otherwise requires, all entities so appointed.
"Method Selection Agreement" means an agreement between the Corporation
and the Method Selection Agent pursuant to which the Method Selection Agent
agrees to determine the Method applicable to a Series of Preferred Stock.
"Minimum Holding Period" has the meaning set forth in Section 3(f)(v)
below.
"Moody's" means Moody's Investors Service, Inc., or its successor, so long
as such agency (or successor) is in the business of rating securities of the
type of the Preferred Stock and, if such agency is not in such business, then a
Substitute Rating Agency.
"Morgan Stanley" means Morgan Stanley & Co. Incorporated.
"Normal Dividend Payment Date" has the meaning set forth in Section
3(b)(ii) below.
"Notice of Change in Dividend Period" has the meaning set forth in Section
3(d)(ii) below.
"Notice of Method Revocation" has the meaning set forth in Section
3(C)(ii) below.
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"Notice of Method Selection" has the meaning set forth in Section 3(C)(i)
below.
"Notice of Percentage Increase" has the meaning set forth in Section
3(h)(i) below.
"Notice of Removal" has the meaning set forth in Section 3(C)(iii) below.
"Notice of Revocation" has the meaning set forth in Section 3(d)(ii)
below.
"Outstanding" means, as of any date, shares of Preferred Stock theretofore
issued except, without duplication, (i) any shares of Preferred Stock
theretofore cancelled, delivered to the Corporation for cancellation or redeemed
and (ii) as of any Auction Date or Remarketing Date, any shares of Preferred
Stock subject to redemption on the next following Business Day.
"Participant" means the member of the Securities Depository that will act
on behalf of an Existing Holder or a Potential Holder, in the case of Auction
Preferred, or the beneficial owner, in the case of Remarketing Preferred, and
that is identified as such in such Holder's or Potential Holder's Master
Purchaser's Letter.
"Paying Agent" means the Auction Agent unless another bank or trust
company has been appointed to act as the paying agent for the shares of
Preferred Stock by resolution of the Board of Directors.
"Percentage" has the meaning set forth in Section 3(h)(i) below.
"Person" means and includes an individual, a partnership, a corporation, a
trust, an unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Purchaser's Letter" means a Master Purchaser's Letter substantially in
the form of Appendix E to the Memorandum delivered to the initial purchasers of
the Preferred Stock which each prospective purchaser of Preferred Stock will be
required to sign as a condition to purchasing Preferred Stock or participating
in an Auction or Remarketing.
"Redemption Agent" means the Auction Agent unless another bank or trust
company has been appointed to act as the redemption agent for the shares of
Preferred Stock by resolution of the Board of Directors.
"Remarketing" means the implementation of Remarketing Procedures.
"Remarketing Agent" means, at any time, the entity or entities appointed
by the Corporation to act on its behalf in establishing dividend rates and
Dividend Periods for Remarketing Preferred and to act on behalf of holders of
Remarketing Preferred in remarketing such Remarketing Preferred as provided in
the Remarketing Procedures.
"Remarketing Depository" means The Bank of New York, and its successors or
any other depository selected by the Corporation which agrees to follow the
procedures required to be followed by such depository in connection with shares
of Remarketing Preferred with a Dividend Period of less than 7 days.
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<PAGE>
"Remarketing Method" means a method of determining Dividend Periods and
dividend rates for the Preferred Stock.
"Remarketing Preferred" means the Preferred Stock, including the Converted
Auction Preferred for which the dividend rate and Dividend Period are to be
determined pursuant to the Remarketing Method.
"Remarketing Procedures" means the procedures for remarketing shares of
Remarketing Preferred as set forth in Section 9.
"Securities Depository" means The Depository Trust Company or any other
securities depository selected by the Corporation that agrees to follow the
procedures required to be followed by such securities depository in connection
with the Preferred Stock.
"Series" means any of the Series G, Series H, Series I or Series J of the
Preferred Stock authorized by this Certificate.
"Short Dividend Period" has the meaning set forth in Section 3(b)(v)
below.
"Standard Dividend Period" has the meaning set forth in Section 3(b)(v)
below.
"Standard & Poor's" or "S&P" means Standard & Poor's Corporation, or its
successor, so long as such agency (or successor) is in the business of rating
securities of the type of the Preferred Stock and, if such agency is not in such
business, then a Substitute Rating Agency.
"Stock Books" means the stock transfer books of the Corporation maintained
by the Paying Agent.
"Substitute Commercial Paper Dealer" means Goldman, Sachs & Co., Shearson
Lehman Brothers Inc. or Merrill Lynch, Pierce, Fenner & Smith Incorporated, or
their respective affiliates or successors or, if none of such firms furnishes
commercial paper quotations, a leading dealer in the commercial paper market
selected by the Corporation in good faith.
"Substitute Rating Agency" means a nationally recognized statistical
rating organization (as that term is used in the rules and regulations of the
Securities Exchange Act of 1934) selected by the Corporation, subject to
approval by Morgan Stanley and First Boston, which approval is not to be
unreasonably withheld.
"Substitute U.S. Government Securities Dealers" means Goldman, Sachs &
Co., Shearson Lehman Brothers Inc. or Merrill Lynch, Pierce, Fenner & Smith
Incorporated, or their respective affiliates or successors or, if none of such
firms provides quotes in U.S. government securities, a leading dealer in the
government securities market selected by the Corporation in good faith.
"Tender Agent" means, at any time, the bank or the organization (initially
The Bank of New York) appointed by the Corporation to perform the duties of
Tender Agent as provided in the Remarketing Procedures.
"Term Selection Agent" means any entity appointed by the Corporation to
act on its behalf in establishing the length of any Dividend Period other than
the Standard Dividend Period, the Dividend Payment Dates for any Short Dividend
Period and, in the case of any Long Dividend Period, additional redemption
provisions, if any, for a Series of Auction Preferred, provided that if the
Corporation shall
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<PAGE>
appoint more than one entity to so act with respect to a Series, "Term Selection
Agent" shall mean, unless the context otherwise requires, all entities so
appointed.
"U.S. Government Securities Dealers" means Morgan Stanley and First Boston
or, in lieu thereof, their respective affiliates or successors.
SECTION 3. Dividends.
(a) Holders of shares of Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, cumulative cash dividends at the Applicable Rate per annum,
determined as set forth in Section 3(f) below, and no more, payable on the
respective dates set forth below.
(b) (i) Dividends on the shares of Preferred Stock of each Series shall
accumulate (whether or not declared) from the Date of Original Issue.
(ii) Dividends on each Series of Preferred Stock shall be payable on
the Initial Dividend Payment Date for such Series. After the Initial
Dividend Periods, dividends on any shares of Preferred Stock with (a) a
Dividend Period of 1 to 48 days (which, in the case of Auction Preferred,
shall be a period of days divisible by 7) will be payable on the day
following the last day of such Dividend Period, (b) a Standard Dividend
Period will be payable on the day following the last day of such Standard
Dividend Period (which last day of such Standard Dividend Period will
normally be each seventh Wednesday following the preceding Dividend
Payment Date for such Series), (c) a Short Dividend Period, on the day
following the last day of such Short Dividend Period and on such other
Dividend Payment Dates as established at the time such Short Dividend
Period is determined and (d) a Long Dividend Period, on the day following
the last day of such Long Dividend Period and on the March 31, June 30,
September 30 and December 31 of each year during such dividend period.
Each day on which dividends on shares of Preferred Stock of each Series
would be payable as determined as set forth in this clause (ii) but for
adjustments set forth in Section 3(f)(v) below, other than adjustments to
reflect changes in the Minimum Holding Period, is referred to herein as a
"Normal Dividend Payment Date".
(iii) Each date on which dividends for each share of Preferred Stock
shall be payable as set forth herein is referred to herein as a "Dividend
Payment Date". If applicable, the period from the preceding Dividend
Payment Date to the next Dividend Payment Date for any share of Preferred
Stock with a Long Dividend Period is herein referred to as a "Dividend
Quarter". Although any particular Dividend Payment Date may not occur on
the originally scheduled Normal Dividend Payment Date because of the
adjustments set forth in Section 3(f)(v) below, each succeeding Dividend
Payment Date shall be, subject to such adjustments, the date determined as
set forth in clause (ii) above as if each preceding Dividend Payment Date
had occurred on the respective originally scheduled Normal Dividend
Payment Date.
(iv) Dividend Periods may be of any duration (including perpetual
duration) and not less than (i) seven days in the case of Auction
Preferred (other than Converted Remarketing Preferred) and (ii) one day in
the case of Remarketing Preferred (other than Converted Auction
Preferred). The duration of each subsequent Dividend Period following the
Initial Dividend Period for each Series and the Applicable Rate for such
subsequent Dividend Period will be determined by either the Auction Method
or the Remarketing Method.
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<PAGE>
(v) The Initial Dividend Payment Date for the Initial Dividend Period
for Series G Preferred Stock shall be February 11, 1993, for Series H
Preferred Stock shall be February 18, 1993, for Series I Preferred Stock
shall be February 25, 1993 and for Series J Preferred Stock shall be March
4, 1993. After the Initial Dividend Period for each Series of Preferred
Stock, each subsequent Dividend Period for any shares of Preferred Stock
shall (except for the adjustments for non-Business Days described in
Section 3(f)(v) below) be 49 days (each such 49-day period, subject to any
adjustment as a result of a change in law adjusting the Minimum Holding
Period as described in Section 3(f)(v) below, being referred to herein as
a "Standard Dividend Period"), unless as provided in clause (d) below, the
Term Selection Agent or the applicable Remarketing Agent, as the case may
be, specifies that any such subsequent Dividend Period for a particular
share of Preferred Stock shall be (A) a Dividend Period of 1 to 48 days
(which in the case of Auction Preferred, shall be a period of days
divisible by 7), (B) a Dividend Period of 50 to 364 days and consisting of
a whole number of weeks (a "Short Dividend Period") or (C) a Dividend
Period of 365 days or longer and consisting of a whole number of weeks (a
"Long Dividend Period"). Each such Dividend Period of 1 to 48 days,
Standard Dividend Period, Short Dividend Period and Long Dividend Period
(together with (i) any Initial Dividend Periods and (ii) any period
commencing on a redemption date on which there is a Failure to Deposit and
ending on the date the redemption price for such shares is paid to the
Paying Agent) being referred to herein as a "Dividend Period").
(c) (i) Subject to certain limitations set forth in clause (v) below,
either Dividend Determination Method may be selected by the Method
Selection Agent for a Series of Preferred Stock for any subsequent
Dividend Period with respect to all shares of such Series, provided that
such Method Selection Agent determines at the time of such selection that
a change in the Dividend Determination Method will be the most favorable
financing alternative for the Corporation based upon the then-current
Marketing Conditions. If more than one entity is serving as Method
Selection Agent for a Series, such entities shall act in concert in
performing their duties, provided that notices referred to herein may be
given by one entity on behalf of all such entities. The Method Selection
Agent for any Series of Preferred Stock will make such selection in a
notice (a "Notice of Method Selection") sent by such Method Selection
Agent to the Corporation, the Term Selection Agent, the Auction Agent, the
Securities Depository, the Remarketing Depository, the Tender Agent and
any applicable Remarketing Agent by telephone (with confirmation in
writing), and to any other record holders of the shares of Preferred Stock
of such Series by first-class mail, postage prepaid, not less then seven
Business Days prior to the first day of such subsequent Dividend Period.
Each Notice of Method Selection will state the Method selected by the
Method Selection Agent. If the Method Selection Agent for a Series which
is then a Series of Remarketing Preferred selects the Auction Method for
any subsequent Dividend Period, the Remarketing Agent for such Series will
establish Dividend Periods and Applicable Rates for shares of such Series
until the Initial Auction Date in a manner that will best promote an
orderly transition to the Auction Method. Any Dividend Determination
Method so selected by the Method Selection Agent for a Series shall
continue in effect for such Series until the Method Selection Agent
selects the other Method in the aforesaid manner. Until a Method Selection
Agent for any Series has been appointed, the Dividend Determination Method
will be the Auction Method.
(ii) A Notice of Method Selection may be revoked (a "Notice of Method
Revocation") by the Method Selection Agent on or prior to 10:00 A.M. on
the second Business Day preceding the first day of the sub-sequent
Dividend Period by giving a Notice of Method Revocation to the
Corporation, the Term Selection Agent, the Securities Depository, the
Remarketing Depository, the Auction Agent, the Tender Agent, any
applicable Remarketing Agent and any other record holders of the shares
of Preferred Stock of such Series.
32
<PAGE>
(iii) Any Notice of Method Selection with respect to any subsequent
Dividend Period for any Series of Preferred Stock shall be deemed to have
been withdrawn if on or prior to the second Business Day preceding the
first day of such subsequent Dividend Period the Corporation shall have
removed the Method Selection Agent for such Series, provided that the
Corporation shall have given a notice (a "Notice of Removal") to the Term
Selection Agent, the Securities Depository, the Remarketing Depository,
the Auction Agent, the Tender Agent, any applicable Remarketing Agent and
any other record holders of shares of Preferred Stock of such Series no
later than 3:00 P.M., New York City time, on such second Business Day. If
more than one entity has been appointed and is acting as Method Selection
Agent for that Series, such Notice of Method Selection shall be deemed to
have been withdrawn only if the Corporation shall have removed all such
entities; and the removal at any time by the Corporation of one or more
but not all such entities shall not effect a deemed withdrawal of a Notice
of Method Selection and in any such event no Notice of Removal need be
given. If the Method Selection Agent for any Series of Preferred Stock
resigns or is removed (or, in either case, if more than one entity has
been appointed and is acting as Method Selection Agent for that Series
then all such entities), the Dividend Determination Method applicable to
such Series in effect at the time of such resignation or removal will
continue in effect until the Corporation appoints a successor Method
Selection Agent for such Series and such Method Selection Agent sends a
Notice of Method Selection. If, as a result of the resignation or removal
of the Method Selection Agent, the Dividend Determination Method for any
Series will continue to be the Auction Method, then the duration of the
next succeeding Dividend Period for such Series will be the Standard
Dividend Period.
(iv) Any Method for a Series of Preferred Stock selected by the Method
Selection Agent for such Series pursuant to a Notice of Method Selection
(except a Notice of Method Selection that is revoked or deemed to have
been withdrawn) shall be conclusive and binding on the Corporation and the
holders of Preferred Stock of such Series. If the Notice of Method
Selection is not revoked or deemed to have been withdrawn, any Method so
selected by the Method Selection Agent for a Series will continue in
effect for that Series until such Method Selection Agent or any successor
selects the other Method in the aforesaid manner. No defect in the Notice
of Method Selection, the Notice of Method Revocation or the Notice of
Removal of the Method Selection Agent or in the mailing thereof shall
affect the validity of any change in the Dividend Determination Method or
any withdrawal, revocation or removal.
(v) Notwithstanding the foregoing, the Method Selection Agent
shall not be entitled to change the Dividend Determination Method then
applicable to a Series if (i) at the time of an election that the
Remarketing Method apply to a Series, the Corporation has not appointed
(and given notice or taken such other action as may be necessary for the
timely effectiveness of such appointment) a Remarketing Agent, a Tender
Agent, a Securities Depository and a Remarketing Depository for such
Series, (ii) at the time of an election that the Auction Method apply to a
Series, the Corporation has not appointed (and given notice or taken such
other action as aforesaid) an Auction Agent, a Securities Depository and
at least one Broker-Dealer for such Series, or such election would result
in more than one Dividend Period for the shares of Preferred Stock of such
Series or (iii) at the time of any such election, a Failure to Deposit has
occurred and is continuing. Once the Method Selection Agent has selected a
Dividend Determination Method for a Series in the aforesaid manner, such
selection shall become effective on the last day of the Dividend Period(s)
then applicable to shares of Preferred Stock of such Series
notwithstanding any Failure to Deposit for such Series which may occur
after the delivery of the Notice of Method Selection by such Method
Selection Agent, the failure to remarket tendered shares of Remarketing
Preferred of
33
<PAGE>
such Series, in the case of the selection of the emarketing Method,
or the lack of Sufficient Clearing Bids in the Auction for such Series,
in the case of the selection of the Auction Method.
(d) (i) With respect to shares of Auction Preferred, each successive
Dividend Period shall commence on the Dividend Payment Date for the
preceding Dividend Period for such Series and shall end (A) in the case of
a Dividend Period of 7 to 48 days or a Standard Dividend Period, on the
day preceding the next Dividend Payment Date and (B) in the case of a
Short Dividend Period or a Long Dividend Period, on the last day of the
Short Dividend Period or Long Dividend Period, as the case may be,
specified by the Term Selection Agent, in the related Notice of Change in
Dividend Period.
(ii) The Term Selection Agent will give telephonic and written notice,
not less than 10 and not more than 30 days prior to an Auction Date and
based on the then-current Marketing Conditions, to the Corporation, the
Auction Agent, the Method Selection Agent, the Securities Depository and
any other record holders of a Series of Auction Preferred if it determines
that the next succeeding Dividend Period for such Series will be a
Dividend Period of 7 to 48 days, a Short Dividend Period or a Long
Dividend Period (any such notice, a "Notice of Change in Dividend
Period"); provided, that if the then-current Dividend Period is less than
10 days, the Term Selection Agent will give such Notice of Change in
Dividend Period no less than 5 days prior to an Auction Date. Each such
Notice of Change in Dividend Period shall be in substantially the form of
Exhibit D to the Auction Agent Agreement and shall specify the following
terms, (A) the next succeeding Dividend Period for such Series as a
Dividend Period of 7 to 48 days, a Short Dividend Period or a Long
Dividend Period; provided that a Dividend Period of 7 to 48 days shall
only be established so long as corporate holders of such Series of
Preferred Stock shall not lose entitlement to the Dividends-Received
Deduction as a result of the length of such Dividend Period, (B) the term
thereof, (C) in the case of a Short Dividend Period, the Dividend Payment
Dates with respect thereto and (D) in the case of a Long Dividend Period,
additional redemption provisions or restrictions on redemption, if any, as
authorized in Section 4(b)(ii) hereof. However, for any Auction occurring
after the initial Auction, the Term Selection Agent may not give a Notice
of Change in Dividend Period (and any such Notice of Change in Dividend
Period shall be null and void) unless Sufficient Clearing Bids were made
in the last occurring Auction for any Series and full cumulative
dividends, if any, for all Series of Auction Preferred payable prior to
the date of such notice have been paid in full. The Term Selection Agent
may establish a Dividend Period of 7 to 48 days, a Short Dividend Period
or a Long Dividend Period for any Series of Preferred Stock, if the Term
Selection Agent determines that such Dividend Period and, in the case of a
Long Dividend Period, additional redemption provisions or restrictions on
redemption, provide the Corporation with the most favorable financing
alternative based upon the then-current Marketing Conditions. A Notice of
Change in Dividend Period may be revoked by the Term Selection Agent on or
prior to 10:00 A.M. New York City time on the related Auction Date by
telephonic and written notice (a "Notice of Revocation"), in substantially
the form of Exhibit E to the Auction Agent Agreement, to the Corporation,
the Auction Agent, the Method Selection Agent, the Securities Depository
and any other record holders of the shares of such Series, specifying that
the Term Selection Agent has determined that because of subsequent changes
in such Marketing Conditions, such Dividend Period would not result in the
most favorable financing alternative for the Corporation. Notices of
Revocation given by the Term Selection Agent will be conclusive and
binding upon the Corporation and the holders of shares of Auction
Preferred and, except as set forth below in clause (iv), a Notice of
Change in Dividend Period given by the Term Selection Agent will be
conclusive and binding upon the Corporation and the holder of shares of
Auction Preferred.
34
<PAGE>
(iii) Any Notice of Change in Dividend Period with respect to any
subsequent Dividend Period for any Series of Auction Preferred will be
deemed to have been withdrawn if on or prior to the second Business Day
preceding an Auction Date the Corporation shall have removed the Term
Selection Agent, provided that the Corporation shall have given Notice of
Removal to the Auction Agent, the Method Selection Agent and the
Securities Depository and any other record holders of the shares of such
Series, no later than 3:00 P.M., New York City time, on such second
Business Day. If the Term Selection Agent resigns or is removed, the
Dividend Period for each Series of Auction Preferred shall be a Standard
Dividend Period until the Corporation appoints a successor Term Selection
Agent for such Series and such Term Selection Agent sends a Notice of
Change in Dividend Period.
(iv) If the Term Selection Agent does not give a Notice of Change in
Dividend Period with respect to the next succeeding Dividend Period for
any Series of Auction Preferred or has given such a Notice of Change in
Dividend Period and gives a Notice of Revocation with respect thereto or
such Notice of Change in Dividend Period is deemed to be withdrawn, such
next succeeding Dividend Period shall be a Standard Dividend Period with
respect to such Series. In addition, in the event the Term Selection Agent
has given a Notice of Change in Dividend Period with respect to the next
succeeding Dividend Period for a Series of Preferred Stock and such notice
has not been revoked or deemed to be withdrawn, but Sufficient Clearing
Bids are not made in the related Auction or such Auction is not held for
any reason, such next succeeding Dividend Period for such Series will,
notwithstanding such Notice of Change in Dividend Period, be a Standard
Dividend Period and the Term Selection Agent may not again give a Notice
of Change in Dividend Period (and any such Notice of Change in Dividend
Period shall be null and void) for such Series until Sufficient Clearing
Bids have been made in an Auction for such Series.
(e) (i) With respect to shares of Remarketing Preferred, the duration of
each subsequent Dividend Period and the Applicable Rate for each such
subsequent Dividend Period shall be established by the Remarketing Agent
for such shares of Remarketing Preferred and will be conclusive and
binding on the Corporation and the holders of such shares.
(ii) For each Dividend Period the applicable Remarketing Agent shall
establish a dividend rate, not in excess of the Maximum Applicable Rate,
which it determines shall be the lowest rate at which tendered shares of
Remarketing Preferred would be remarketed at $250,000 per share. In
establishing each Dividend Period and dividend rate, each Remarketing
Agent will establish Dividend Periods and dividend rates which it
determines will result in the most favorable financing alternative for the
Corporation based on the then-current Marketing Conditions.
(iii) Each Holder will be deemed to have tendered its shares of
Remarketing Preferred for sale by Remarketing on the Business Day
immediately preceding the first day of each subsequent Dividend Period
applicable thereto, unless it gives irrevocable notice otherwise.
Consequently, a Holder will hold shares of Remarketing Preferred only for
a Dividend Period and at a dividend rate accepted by that holder, except
for one or more successive Dividend Periods of one day resulting from a
Failure to Deposit or the failure to remarket such shares as described
below. At any time, any or all shares of Remarketing Preferred of a Series
may have Dividend Periods of various lengths. Depending on Marketing
Conditions at the time of Remarketing, any or all shares of Remarketing
Preferred of a Series may have different Applicable Rates, including those
set on the same day for Dividend Periods of equal length.
35
<PAGE>
(f) (i) Not later than 11:00 A.M. New York City time on the Dividend
Payment Date (except as provided in Section 3(f)(v) below) for each share
of Preferred Stock, the Corporation is required to deposit with the Paying
Agent sufficient immediately available funds for the payment of declared
dividends.
(ii) Each dividend shall be payable to the holder or holders of
record of such shares of Preferred Stock as such holders' names appear on
the Stock Books on the Business Day next preceding the applicable Dividend
Payment Date. Subject to Section 3(i) below, dividends in arrears
(including any Additional Payments) for any past Dividend Payment Date may
be declared by the Board of Directors and paid at any time, without
reference to any regular Dividend Payment Date, to the holder or holders
of record as such holders appear on the Stock Books as of the Business Day
next preceding such Dividend Payment Date. Any dividend payment made on
any shares of Preferred Stock shall first be credited against the
dividends accumulated with respect to the earliest Dividend Payment Date
for which dividends have not been paid with respect to such shares.
(iii) So long as the shares of Preferred Stock are held of record by
the nominee of the Securities Depository or the Remarketing Depository, as
the case may be, dividends will be paid to the nominee of the Securities
Depository or the Remarketing Depository, on each Dividend Payment Date.
Dividends on shares of Preferred Stock held through the Securities
Depository will be paid through the Securities Depository on each Dividend
Payment Date in accordance with its normal procedures.
(iv) Dividends on any shares of Preferred Stock held by the Remarketing
Depository will be paid through the Remarketing Depository on each
Dividend Payment Date by wire or other transfer of immediately available
funds to a Holder's account with a commercial bank in the United States so
long as such Holder has provided the Remarketing Depository with the
necessary information to effect such transfer. Any payments not made by
wire or other transfer will be made by check to the Holder of such
Preferred Stock.
(v) In the case of dividends payable with respect to a share of
Preferred Stock with a Dividend Period of 7 to 48 days, a Standard
Dividend Period or a Short Dividend Period, if:
(A) (x) The Securities Depository shall continue to make
available to Participants the amounts due as dividends on such
shares of Preferred Stock in next-day funds on the dates on which
such dividends are payable and (y) a Normal Dividend Payment Date is
not a Business Day, or the day next succeeding such Normal Dividend
Payment Date is not a Business Day, then dividends shall be payable
on the first Business Day preceding such Normal Dividend Payment
Date that is next succeeded by a Business Day; or
(B) (x) The Securities Depository shall make available to
Participants the amounts due as dividends on such shares of
Preferred Stock in immediately available funds on the dates on which
such dividends are payable (and the Securities Depository shall have
so advised the Auction Agent) and (y) a Normal Dividend Payment Date
is not a Business Day, then dividends shall be payable on the first
Business Day following such Normal Dividend Payment Date.
(C) In the case of dividends payable with respect to shares of
Preferred Stock with a Long Dividend Period, if:
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<PAGE>
(I) (x) The Securities Depository shall continue to make
available to its Participants the amounts due as dividends on
such shares of Preferred Stock in next-day funds on the dates
on which such dividends are payable and (y) a Normal Dividend
Payment Date is not a Business Day, or the day next succeeding
such Normal Dividend Payment Date is not a Business Day, then
dividends shall be payable on the first Business Day following
such Normal Dividend Payment Date that is next succeeded by a
Business Day; or
(II) (x) The Securities Depository shall make available to its
Participants the amounts due as dividends on such shares of
Preferred Stock in immediately available funds on the dates on
which such dividends are payable (and the Securities
Depository shall have so advised the Auction Agent) and (y) a
Normal Dividend Payment Date is not a Business Day, then
dividends shall be payable on the first Business Day following
such Normal Dividend Payment Date.
(D) Notwithstanding the foregoing, in case of payment in
next-day funds, if the date on which dividends on shares of
Preferred Stock would be payable as determined as set forth in
clauses (A), (B) and (C) above is a day that would result, due to
such procedures, in the number of days between successive Auction
Dates or Remarketing Dates for such shares (determined by excluding
the first Auction Date or Remarketing Date, as the case may be, and
including the second Auction Date and the second Remarketing Date,
as the case may be), not being at least equal to the then-current
minimum holding period (currently set forth in Section 246(c) of the
Code) (the "Minimum Holding Period") required for corporate
taxpayers to be entitled to the dividends- received deduction on
preferred stock held by nonaffiliated corporations (currently set
forth in Section 243(a) of the Code) (the "Dividends-Received
Deduction"), then dividends on such shares shall be payable on the
first Business Day following such date on which dividends would be
so payable that is next succeeded by a Business Day that results in
the number of days between such successive Auction Dates or
Remarketing Dates, as the case may be (determined as set forth
above), being at least equal to the then current Minimum Holding
Period.
(E) In addition, notwithstanding the foregoing, in the event
of a change in law altering the Minimum Holding Period, the period
of time between Dividend Payment Dates shall automatically be
adjusted so that there shall be a uniform number of days in
subsequent Dividend Periods (such number of days without giving
effect to the adjustments referred to above being referred to herein
as "Subsequent Dividend Period Days") commencing after the date of
such change in law equal to or, to the extent necessary, in excess
of the then current Minimum Holding Period; provided that the number
of Subsequent Dividend Period Days shall not exceed by more than
nine days the length of such then-current Minimum Holding Period and
shall be evenly divisible by seven, and the maximum number of
Subsequent Dividend Period Days, as adjusted pursuant to this
provision, in no event shall exceed 119 days.
(F) If a Normal Dividend Payment Date for shares of
Remarketing Preferred with Dividend Periods of less than 7 days is
not a Business Day, then dividends shall be payable on the first
Business Day following such Normal Dividend Payment Date.
(g) (i) For the Initial Dividend Periods dividends will accumulate at a
rate per annum of 3.25% for Series G Preferred Stock, 3.25% for Series H
Preferred Stock, 3.25% for Series I Preferred Stock,
37
<PAGE>
and 3.25% for Series J Preferred Stock (in each case, the "Initial Dividend
Rate"). The dividend rate for each share of Preferred Stock for each subsequent
Dividend Period shall be the Applicable Rate determined by either the Auction
Method or the Remarketing Method.
(ii) Notwithstanding the application of either the Auction Method or the
Remarketing Method, the dividend rate on each share of Preferred Stock
shall not exceed the Maximum Applicable Rate per annum for any Dividend
Period; provided, however, that the Chief Financial Officer of the
Corporation (the "Chief Financial Officer") based on certain factors may
increase the Percentage used to calculate the Maximum Applicable Rate at
any time up to certain amounts set forth below in Section 3(h)(ii). The
provisions of the immediately preceding sentence notwithstanding, at any
time that the application of the provisions with respect to a Failure to
Deposit would, but for the provisions of the immediately preceding
sentence, result in a dividend rate on a share of Preferred Stock being in
excess of the Maximum Applicable Rate per annum, the maximum dividend rate
applicable to such share of Preferred Stock shall be such higher dividend
rate as provided below.
(h) (i) Not later than 10:00 A.M., New York City time, on the related
Auction Date or Remarketing Date, as the case may be, and based on the criteria
set forth below, the Chief Financial Officer may, upon telephonic and written
notice, to the Auction Agent, each applicable Remarketing Agent, the Securities
Depository, the Remarketing Depository and any other record holder of shares of
Preferred Stock affected thereby, increase the percentage (the "Percentage")
used to calculate the Maximum Applicable Rate for any shares of Preferred Stock
(a "Notice of Percentage Increase"). Such Notice of Percentage Increase shall
specify the new Percentages to be used to calculate the Maximum Applicable Rate
and shall be in substantially the form of Exhibit G to the Auction Agent
Agreement.
The Chief Financial Officer may increase such Percentages if the Chief
Financial Officer determines that supervening considerations make the
Percentages then in effect inimical to the financial interests of the
Corporation and that such increase is necessary to enable the operation of the
then-applicable Method to provide the Corporation with the most favorable
financing alternatives based on then-current Marketing Conditions. The Chief
Financial Officer may not revoke a Notice of Percentage Increase and the
Percentages specified therein will be the applicable Percentages for the
determination of the Maximum Applicable Rate with respect to such shares for
subsequent Dividend Periods, except as described below, until a new Notice of
Percentage Increase shall be delivered in accordance with the terms thereof.
38
<PAGE>
(ii) Except as described below, the Chief Financial Officer may not
increase the Percentage used to calculate the Maximum Applicable Rate to
above the Percentages set forth in the third column of the table below
corresponding to the applicable credit ratings set forth in the first two
columns of the table below.
<TABLE>
<CAPTION>
Credit Rating Maximum Percentage
Permitted to be
Used to Calculate
Maximum Applicable
Moody's Standard & Poor's Rate
------- ----------------- ------------------
<S> <C> <C>
"aa3" or Above AA- or Above 175%
"a3" to "a1" A- to A+ 225%
"baa3" to "baa1" +BBB- to BBB 250%
Below "baa3" Below BBB 275%
</TABLE>
The maximum percentages set forth in the third column of the above
table may be increased by the Chief Financial Officer, upon receipt
of an opinion of counsel addressed to the Corporation to the effect
that the use of such higher percentages to calculate the Maximum
Applicable Rate will not adversely affect the tax treatment of the
Preferred Stock.
(iii) The Chief Financial Officer may only raise the Percentage
applicable to a Series of Auction Preferred if the Chief Financial Officer
raises such Percentage for all the shares of such Series. The Chief
Financial Officer may, however, only raise the Percentage applicable to
shares of Remarketing Preferred with respect to those shares of
Remarketing Preferred being remarketed on the same date, and shall not be
required to raise the Percentage applicable to any other shares of
Remarketing Preferred. However, if the Percentage applicable to a share of
Remarketing Preferred is less than the Percentage applicable to any other
share of Remarketing Preferred of the same Series, the lower Percentage
applicable to such share shall, at the end of the current Dividend Period
for such share, automatically be increased to the highest Percentage then
applicable to any share of Remarketing Preferred of such Series, unless
the Chief Financial Officer elects to increase further the Percentage
applicable to such share.
(i) (A) In the event a Failure to Deposit occurs and any such Failure to
Deposit shall not have been cured within three Business Days after such
occurrence, then until such time as the full amount due shall have been
paid to the Paying Agent, the Auction Procedures and the Remarketing
Procedures will be suspended. The Applicable Rate for each Dividend Period
commencing on or after any such Dividend Payment Date (or redemption date,
as the case may be) on which there has been a Failure to Deposit and such
Failure to Deposit has not been cured within three Business Days shall be
equal to the Default Rate for such Dividend Period. In addition, if any
such Dividend Payment Date was not the last day of a Dividend Period, the
Applicable Rate for the portion of such Dividend Period commencing on such
Dividend Payment Date and ending on the day preceding the next succeeding
Dividend Payment Date shall be the Default Rate for such period, computed
as if such period were a "Dividend Period". If there has been a failure to
pay dividends on the last day of a Dividend Period, the Dividend Period to
which such Default Rate will apply shall be a Standard Dividend Period in
the case of Auction Preferred and successive one day periods in the case
of Remarketing Preferred. If there has been a failure to pay the
redemption price of shares of Preferred Stock called for redemption, the
Dividend Period to which such
39
<PAGE>
Default Rate will apply shall be the period commencing on, and including,
the redemption date and ending on, but excluding, the date the redemption
price is paid to the Paying Agent. The suspension of the Auction
Procedures and the Remarketing Procedures shall continue in effect until
there shall occur a Dividend Payment Date at least one Business Day prior
to which the full amount of any dividends (whether or not earned or
declared) payable on each Dividend Payment Date prior to and including
such Dividend Payment Date along with any Additional Payments then due,
and the full amount of any redemption price (including accumulated and
unpaid dividends) then due shall have been paid to the Paying Agent, and
thereupon application of the Auction Procedures and the Remarketing
Procedures shall resume for any Outstanding shares on the terms stated
herein for Dividend Periods commencing with such Dividend Payment Date. If
a Failure to Deposit is cured within three Business Days, then the
Applicable Rate will be the dividend rate established in connection with
any Auction or Remarketing relating to such shares of Preferred Stock
conducted immediately preceding the Failure to Deposit, provided that the
Applicable Rate shall be the Default Rate for each day (excluding the date
of deposit) until the Failure to Deposit is cured. Such Default Rate shall
be computed using the Dividend Period established in connection with any
Auction or Remarketing relating to such shares of Preferred Stock
conducted immediately preceding the Failure to Deposit.
(B) Any Failure to Deposit with respect to any share of Preferred
Stock shall be deemed to be cured if, with respect to a Failure to Deposit
relating to (a) the payment of dividends on such shares of Preferred
Stock, the Corporation deposits with the Paying Agent by 11:00 A.M., New
York City time, all accumulated and unpaid dividends on such shares of
Preferred Stock, including the full amount of any dividends to be paid
with respect to the Dividend Period or portion thereof with respect to
which the Failure to Deposit occurred, plus Additional Payments, and (b)
the redemption of such shares, the Corporation deposits with the Paying
Agent by 11:00 A.M., New York City time, funds sufficient for the
redemption of such shares (including accumulated and unpaid dividends) and
gives irrevocable instructions to apply such funds and, if applicable, the
income and proceeds therefrom, to the payment of the redemption price
(including accumulated and unpaid dividends) for such shares. If the
Corporation shall have cured such Failure to Deposit by making timely
payment to the Paying Agent, either the Auction Agent or the Remarketing
Agent, as the case may be, will give telephonic and written notice of such
cure to each Holder of shares of Preferred Stock at the telephone number
and address specified in such Holder's Master Purchaser's Letter and to
each Broker-Dealer, in the case of the Auction Agent, as promptly as
practicable after such cure is effected. Additional Payments paid to the
Paying Agent with respect to a Failure to Deposit will be payable to the
Holders of shares of Preferred Stock on the Record Date for the Dividend
Payment Date with respect to which such Failure to Deposit occurred.
(j) If an Auction or Remarketing for any shares of Preferred Stock is not
held on an Auction Date or Remarketing Date for any reason (other than because
of the suspension of Auctions or Remarketing due to a Failure to Deposit as
described above), the dividend rate for such shares shall be the Maximum
Applicable Rate (calculated assuming a Standard Dividend Period) determined as
of such Auction Date or Remarketing Date and the Dividend Period shall be a
Standard Dividend Period, in the case of Auction Preferred, and successive
Dividend Periods of one day, in the case of Remarketing Preferred, until such
shares of Remarketing Preferred are remarketed.
(k) The amount of dividends per share payable on any Dividend Payment Date
on a share of Preferred Stock having a Dividend Period of up to 364 days shall
be computed by multiplying the Applicable Rate for each Dividend Period by a
fraction the numerator of which shall be the number of days between Dividend
Payment Dates (calculated by counting the date of the preceding Dividend
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Payment Date as the first day and the day preceding the current Dividend Payment
Date as the last day) and the denominator of which shall be 360, and multiplying
the amount so obtained by $250,000. During any Dividend Period of 365 days or
longer, the amount of dividends accumulated on each share will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
(l) (i) Holders of shares of each Series of Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends. So long as any shares of Preferred
Stock are Outstanding, the Corporation shall not declare or pay or set
apart for payment any dividends or make any other distributions on, or
payment on account of the purchase, redemption or other retirement of the
common stock of the Corporation or any other capital stock of the
Corporation ranking junior to the Preferred Stock as to dividends or as to
distributions upon liquidation, dissolution or winding-up of the
Corporation unless (i) full cumulative dividends on the Preferred Stock
have been paid (or declared and a sum sufficient for the payment thereof
set apart for such payment) for all Dividend Periods terminating on or
prior to the date of such payment, distribution, purchase, redemption or
other retirement with respect to such junior capital stock and (ii) the
Corporation is not in default with respect to any obligation to redeem or
retire shares of the Preferred Stock; 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 Corporation, junior to
the 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 Corporation, junior to the
Preferred Stock in exchange solely for shares of any other stock ranking,
as to dividends and as to distributions in the event of a liquidation,
dissolution or winding-up of the Corporation, junior to the Preferred
Stock.
(ii) Each dividend will be payable to the holder or holders of record
of shares of Preferred stock as they appear on the Stock Books on the
Business Day next preceding the applicable Dividend Payment Date.
Dividends in arrears for any past Dividend Period (and for any past
Dividend Payment Date occurring prior to the end of a Long Dividend
Period or a Short Dividend Period) may be declared and paid at any time,
without reference to any regular Dividend Payment Date, to the record
holders of such shares. Any dividend payment made on any shares of
Preferred Stock shall first be credited against the dividends accumulated
with respect to the earliest Dividend Payment Date for which dividends
have not been paid with respect to such shares. So long as the shares of
Preferred stock are held of record by the nominee of the Securities
Depository or the Remarketing Depository, as the case may be, dividends
will be paid to the nominee of the Securities Depository or the
Remarketing Depository, on each Dividend Payment Date.
(iii) Unless otherwise provided for in the Restated Certificate of
Incorporation, as the same may be amended, of the Corporation, all
payments in the form of dividends made upon shares of Preferred Stock and
any other stock ranking on a parity with the Preferred Stock with respect
to such dividend shall be pro rata, so that amounts paid per share on the
Preferred Stock and such other stock shall in all cases bear to each other
the same ratio that the required dividends then payable per share on the
shares of Preferred Stock and such other stock bear to each other.
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SECTION 4. Optional Redemption.
(a) At the option of the Corporation, by resolution of the Board of
Directors, the shares of a Series of Preferred Stock may be redeemed, in whole
or in part, out of funds legally available therefor, on the Business Day
immediately preceding any Dividend Payment Date for such shares, upon at least
15 but not more than 45 days notice, at a redemption price per share equal to
the sum of $250,000 plus premium thereon, if any, and an amount equal to accrued
and unpaid dividends thereon (whether or not earned or declared) to the date
that the Corporation pays the full amount payable upon redemption of such
shares; provided that such redemption date shall be the Dividend Payment Date
for such shares if the payment on the Business Day preceding such date would
reduce the holding period for such shares since the Auction Date or Remarketing
Date preceding such payment below the Minimum Holding Period. Pursuant to such
right of optional redemption, the Corporation may elect to redeem some or all of
the shares of Preferred Stock of any Series without redeeming shares of any
other Series.
(b) (i) Notwithstanding the foregoing, if any dividends on shares of any
Series of Preferred Stock are in arrears, (i) no shares of such Series of
Preferred Stock or of any other Series of Preferred Stock shall be
redeemed unless all outstanding shares of each Series of Preferred Stock
are simultaneously redeemed and (ii) the Corporation shall not purchase or
otherwise acquire any shares of Preferred Stock; provided, however, that
the foregoing shall not prevent the purchase or acquisition of shares of
Preferred Stock pursuant to an otherwise lawful purchase or exchange offer
made on the same terms to all Holders of Outstanding shares of Preferred
Stock.
(ii) In connection with the selection of a Long Dividend Period, the
Term Selection Agent or the applicable Remarketing Agent, as the case may
be, may restrict the Corporation's ability to redeem shares of Preferred
Stock by providing for the payment of a redemption premium or fixing a
period of time during which such shares of Preferred Stock may not be
redeemed if the Term Selection Agent or the applicable Remarketing Agent,
as the case be, determines, based on the then-current Marketing
Conditions, that adding such terms will result in the most favorable
financing alternative for the Corporation.
(c) (i) If shares of Preferred Stock are to be redeemed, the Redemption
Agent will, at the direction of the Corporation, cause to be sent, by
first-class or air mail, postage prepaid, telex or facsimile, a notice of
redemption to each holder of record (initially Cede & Co., as nominee of
the Securities Depository) of shares of Preferred Stock to be redeemed.
Such notice of redemption shall be sent not fewer than fifteen nor more
than 45 days prior to the redemption date. Each notice of redemption will
identify the Preferred Stock to be redeemed by CUSIP number and will state
(a) the redemption date, (b) the redemption price, (c) the place where the
redemption price is to be paid and (d) the number of shares of Preferred
Stock and the Series thereof to be redeemed. The notice will also be
published in The Wall Street Journal.
(ii) No defect in the notice of redemption or in the mailing or
publication thereof will affect the validity of the redemption
proceedings, except as required by applicable law. A notice of redemption
will be deemed given on the day that it is mailed in accordance with the
foregoing description.
(iii) The Corporation may elect to redeem some or all of the shares
of each Series of Preferred Stock.
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(iv) In the case of shares of a Series of Auction Preferred, so long
as the Securities Depository's nominee is the record holder of such
shares, the Redemption Agent will give notice to the Securities
Depository, and the Securities Depository will determine the number of
shares of each such Series to be redeemed from the accounts of each of its
Participants. A Participant may determine to redeem shares from certain of
the beneficial holders holding through such Participant (which may include
a Participant holding shares for its own account) without redeeming shares
from the accounts of other beneficial owners.
Any such redemption will be made in accordance with applicable laws and
rules.
(v) In the case of shares of Remarketing Preferred, notice of such
redemption shall be given to the Securities Depository or the Remarketing
Depository, as the case may be, and any other record holders of the
Remarketing Preferred to be redeemed. The Corporation shall identify by
CUSIP number the shares of Remarketing Preferred to be redeemed. To the
extent less than all of the shares of Remarketing Preferred represented by
a certificate with a particular CUSIP number are to be redeemed, the
applicable Depository shall determine the shares represented by such
certificate to be redeemed. In the case of the Securities Depository, the
shares to be redeemed shall be determined as described in the preceding
paragraph, and in the case of the Remarketing Depository, the Remarketing
Depository shall determine the number of shares represented by such
certificate to be redeemed from each Holder thereof.
(vi) If any shares of Preferred Stock to be redeemed are not held
of record by a nominee for the Securities Depository or the Remarketing
Depository, the particular shares of Preferred Stock to be redeemed shall
be selected by the Corporation by lot or by such other method as the
Corporation shall deem fair and equitable.
(vii) Upon any date fixed for redemption (unless a Failure to
Deposit occurs), all rights of the Holders of shares of Preferred Stock
called for redemption will cease and terminate, except the right of such
Holders to receive the amounts payable in respect of such redemption
therefor, but without interest, and such shares of Preferred Stock will be
deemed no longer outstanding and, upon the taking of any action required
by applicable law, shall have the status of authorized and unissued shares
of preferred stock and may be reissued by the Corporation at any time as
shares of any series of preferred stock other than as shares of Preferred
Stock.
SECTION 5. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the Corporation, the
holders of the shares of the Preferred Stock shall be entitled to receive, out
of the assets of the Corporation, whether such assets are capital or surplus and
whether or not any dividends as such are declared but before any payment or
distribution of assets is made to holders of common stock of the Corporation or
any other class of stock or series thereof ranking junior to the Preferred Stock
with respect to the distribution of assets, a preferential liquidation
distribution in the amount of $250,000 per share of Preferred Stock plus an
amount equal to accumulated and unpaid dividends on each such share (whether or
not declared) to and including the date of such distribution and no more.
Neither the merger or consolidation of the Corporation with or into any other
corporation, nor the merger or consolidation of any other corporation with or
into the Corporation, nor the sale, lease, exchange or other transfer of all or
any portion of the assets of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of
this Section 5.
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(b) If upon any liquidation, dissolution or winding up of the affairs of
the Corporation, whether voluntary or involuntary, the assets of the Corporation
available for distribution to the holders of Preferred Stock and any other
series of capital stock of the Corporation ranking on a parity with the
Preferred Stock are insufficient to pay the holders of the Preferred Stock the
full amount of the preferential liquidation distributions to which they are
entitled, then such assets of the Corporation shall be distributed ratably among
the holders of Preferred Stock and any other series of capital stock of the
Corporation ranking on a parity with the Preferred Stock based upon the ratio of
(x) the aggregate amount available for distribution on all shares of Preferred
Stock and such parity stock to (y) the total amount distributable on all shares
of Preferred Stock and such parity stock upon liquidation.
SECTION 6. Voting Rights.
(a) Holders of the Preferred Stock will have no voting rights except as
hereinafter described or as otherwise provided by the General Corporation Law of
the State of Delaware; provided, however, that the affirmative vote of the
holders of record of at least 66 2/3% of the Outstanding shares of Preferred
Stock, voting separately as one class, shall be necessary to adopt any
alteration, amendment or repeal of any provision of the Articles of
Incorporation or this Certificate of Designations (including any such
alteration, amendment or repeal effected by any merger or consolidation), if
such alteration, amendment or repeal would alter or change the powers,
preferences or special rights of the shares of Preferred Stock so as to affect
them adversely.
(b) (i) If at any time the equivalent of six or more full quarterly
dividends (whether or not consecutive) payable on the Preferred Stock
shall be in arrears (to any extent) (a "Default Period"), the number of
directors constituting the Board of Directors of the Corporation shall be
increased by two (2), and the holders of record of the Preferred Stock
shall have the exclusive right, voting as a class with any other shares of
preferred stock of the Corporation so entitled to vote thereon, to elect
the directors to fill such newly created directorships. This right shall
remain vested until all dividends in arrears on the Preferred Stock have
been paid or declared and set apart for payment, at which time (A) the
right shall terminate (subject to revesting), (B) the term of the
directors then in office elected in accordance with the foregoing shall
terminate, and (C) the number of directors constituting the Board of
Directors of the Corporation shall be reduced by the number of directors
whose term has been terminated pursuant to clause (B) above. For purposes
of the foregoing, default in the payment of dividends for the equivalent
of six quarterly dividends means, in the case of Preferred Stock which
pays dividends either more or less frequently than every quarter, default
in the payment of dividends in respect of one or more Dividend Periods
containing not less than 540 days.
(ii) Whenever such right shall vest, it may be exercised initially
by the vote of the holders of record of a majority of the shares of
Preferred Stock present and voting, in person or by proxy, at a special
meeting of holders of record of the Preferred Stock or at the next annual
meeting of stockholders. A special meeting for the exercise of such right
shall be called by the Secretary of the Corporation as promptly as
possible, and in any event within 10 days after receipt of a written
request signed by the holders of record of at least 25% of the Outstanding
shares of the Preferred Stock, subject to any applicable notice
requirements imposed by law. Notwithstanding the provisions of this
paragraph, no such special meeting shall be held during the 30-day period
preceding the date fixed for the annual meeting of stockholders of the
Corporation.
(iii) So long as a Default Period continues, any director who shall
have been elected by holders of record of Preferred Stock entitled to vote
in accordance herewith shall hold office for a
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term expiring at the next annual meeting of stockholders and during such
term may be removed at any time, without cause by, and only by, the
affirmative vote of the holders of record of a majority of the shares of
Preferred Stock present and voting, in person or by proxy, at a special
meeting of such stockholders of record called for such purpose, and any
vacancy created by such removal may also be filled at such meeting. A
meeting for the removal of a director elected by the holders of record of
Preferred Stock and the filling of the vacancy created thereby shall be
called by the Secretary of the Corporation as promptly as possible and in
any event within 10 days after receipt of request therefor signed by the
holders of record of not less than 25% of the Outstanding shares of
Preferred Stock, subject to any applicable notice requirements imposed by
law. Such meeting shall be held at the earliest practicable date
thereafter. Notwithstanding the provisions of this paragraph, no such
meeting shall be held during the 30-day period preceding the date fixed
for the annual meeting of stockholders of the Corporation.
(iv) Any vacancy caused by the death, resignation or expiration of
the term of office of a director who shall have been elected in accordance
with these provisions may be filled by the remaining director so elected
or, if not so filled, by a vote of holders of record of a majority of the
shares of Preferred Stock present and voting, in person or by proxy, at a
meeting called for such purpose (or, in the case of expiration of the term
of office of such director, at the annual meeting of stockholders of the
Corporation). Unless such vacancy shall have been filled by the remaining
director or by vote at the annual meeting of stockholders, such special
meeting shall be called by the Secretary of the Corporation at the
earliest practicable date after such death, resignation or expiration of
term of office, and in any event within 10 days after receipt of a written
request signed by the holders of record of at least 25% of the Outstanding
shares of Preferred Stock. Notwithstanding the provisions of this
paragraph, no such special meeting shall be held during the 30-day period
preceding the date fixed for the annual meeting of stockholders of the
Corporation.
(v) If any meeting of the holders of the Preferred Stock required
above to be called shall not have been called within 10 days after
personal service of a written request therefor upon the Secretary of the
Corporation or within 15 days after mailing the same by registered mail
addressed to the Secretary of the Corporation at his principal office,
subject to any applicable notice requirements imposed by law, then the
holders of record of at least 25% of the Outstanding shares of Preferred
Stock may designate in writing a holder of Preferred Stock to call such
meeting at the expense of the Corporation, and such meeting may be called
by such person so designated upon the notice required for annual meetings
of stockholders or such shorter notice (but in no event shorter than
permitted by law) as may be acceptable to the holders of a majority of the
total number of shares of Preferred Stock. Any holder of Preferred Stock
so designated shall have access to the stock books of the Corporation for
the purpose of causing such meeting to be called pursuant to these
provisions. Such meeting shall be held at the earliest practicable date
thereafter. Notwithstanding the provisions of this paragraph, no such
meeting shall be held during the 30-day period preceding the date fixed
for the annual meeting of stockholders of the Corporation.
(vi) At any meeting of the holders of record of the Preferred Stock
called in accordance with the above provisions for the election or removal
of directors, the presence in person or by proxy of the holders of record
of one-third of the total number of Outstanding shares of Preferred Stock
shall be required to constitute a quorum; in the absence of a quorum, a
majority of the holders of record present in person or by proxy shall have
power to adjourn the meeting from time to time without notice, other than
announcement at the meeting, until a quorum shall be present.
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SECTION 7. Auction Procedures.
(a) Certain Definitions. Capitalized terms not defined in this Section 7
shall have the respective meanings specified elsewhere in this part of Article
IV(B). As used in this Section 7, the following terms shall have the following
meanings, unless the context otherwise requires:
(i) "Available Shares of Auction Preferred" has the meaning set
forth in subsection (d)(i) below.
(ii) "Bid" has the meaning set forth in subsection (b)(i) below.
(iii) "Bidder" has the meaning set forth in subsection (b)(i) below.
(iv) "Broker-Dealer Agreement" means an agreement between the
Auction Agent and a Broker-Dealer pursuant to which such Broker-Dealer
agrees to follow the procedures specified in these Auction Procedures.
(v) "Hold Order" has the meaning set forth in subsection (b)(i)
below.
(vi) "Order" has the meaning set forth in subsection (b)(i) below.
(vii) "Potential Holder" means any Person, including any Existing
Holder, (A) who shall have executed a Purchaser's Letter and (B) who may
be interested in acquiring shares of Auction Preferred (or, in the case of
an Existing Holder, additional shares of Auction Preferred).
(viii) "Sell Order" has the meaning set forth in subsection (b)(i)
below.
(ix) "Submission Deadline" means 1:00 P.M., New York City time, on
any Auction Date, or such other time on any Auction Date as may be
specified from time to time by the Auction Agent as the time prior to
which each Broker-Dealer must submit to the Auction Agent in writing all
Orders obtained by it for the Auction to be conducted on such Auction
Date.
(x) "Submitted Bid" has the meaning set forth in subsection (C)(i)
below.
(xi) "Submitted Hold Order" has the meaning set forth in subsection
(C)(i) below.
(xii) "Submitted Order" has the meaning set forth in subsection
(C)(i) below.
(xiii) "Submitted Sell Order" has the meaning set forth in
subsection (C)(i) below.
(xiv) "Sufficient Clearing Bids" has the meaning set forth in
subsection (d)(i) below.
(xv) "Winning Bid Rate" has the meaning set forth in subsection
(d)(i) below.
(b) Orders by Existing Holders and Potential Holders.
(i) Prior to the Submission Deadline on each Auction Date for any
Series of Auction Preferred:
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(A) each Existing Holder may submit to a Broker-Dealer
information as to:
(1) the number of Outstanding shares of Auction
Preferred, if any, held by such Existing Holder that such
Existing Holder desires to continue to hold without regard to
the Applicable Rate for the next succeeding Dividend Period;
(2) the number of Outstanding shares of Auction
Preferred, if any, held by such Existing Holder that such
Existing Holder desires to sell, provided that the Applicable
Rate for the next succeeding Dividend Period is less than the
rate per annum specified by such Existing Holder; and/or
(3) the number of Outstanding shares of Auction
Preferred, if any, held by such Existing Holder that such
Existing Holder desires to sell without regard to the
Applicable Rate for the next succeeding Dividend Period; and
(B) each Broker-Dealer, using a list of Potential Holders that
shall be maintained in accordance with the provisions set forth in
the Broker-Dealer Agreement for the purpose of conducting a
competitive Auction, shall contact both Existing Holders and
Potential Holders, including Existing Holders with respect to an
offer by any such Existing Holder to purchase additional shares of
Auction Preferred, on such list to notify such Existing Holders and
Potential Holders as to the length of the next Dividend Period and
(i) with respect to any Short Dividend Period or Long Dividend
Period, the Dividend Payment Date(s) and (ii) with respect to any
Long Dividend Period, any dates before which shares of Auction
Preferred may not be redeemed and any redemption premium applicable
in an optional redemption and to determine the number of Outstanding
shares of Auction Preferred, if any, with respect to which each such
Existing Holder and each Potential Holder desires to submit an Order
and each such Potential Holder offers to purchase, provided that the
Applicable Rate for the next succeeding Dividend Period shall not be
less than the rate per annum specified by such Potential Holder.
For the purposes hereof, the communication to a Broker-Dealer of
information referred to in clause (A) or (B) of this Subsection (b)(i) is
hereinafter referred to as an "Order" and each Existing Holder and each
Potential Holder placing an Order is hereinafter referred to as a "Bidder;" an
Order containing the information referred to in clause (A)(1) of this Subsection
(b)(i) is hereinafter referred to as a "Hold Order;" an Order containing the
information referred to in clause (A)(2) or (B) of this Subsection (b)(i) is
hereinafter referred to as a "Bid;" and an Order containing the information
referred to in clause (A)(3) of this Subsection (b)(i) is hereinafter referred
to as a "Sell Order".
(ii) (A) A Bid by an Existing Holder shall constitute an irrevocable
offer to sell:
(1) the number of Outstanding shares of Auction
Preferred specified in such Bid if the Applicable Rate
determined on such Auction Date shall be less than the rate
per annum specified in such Bid; or
(2) such number or a lesser number of Outstanding shares
of Auction Preferred to be determined as set forth in
Subsections (e)(i)(D) and (e)(iii) if the Applicable Rate
determined on such Auction Date shall be equal to the rate per
annum specified therein; or
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(3) a lesser number of Outstanding shares of Auction
Preferred to be determined as set forth in Subsections
(e)(ii)(C) and (e)(iii) if such specified rate per annum shall
be higher than the Maximum Applicable Rate and Sufficient
Clearing Bids do not exist.
(B) a Sell Order by an Existing Holder shall constitute an
irrevocable offer to sell:
(1) the number of Outstanding shares of Auction
Preferred specified in such Sell Order; or
(2) such number or a lesser number of Outstanding shares
of Auction Preferred to be determined as set forth in
Subsections (e)(ii)(C) and (e)(iii) if Sufficient Clearing
Bids do not exist.
(C) a Bid by a Potential Holder shall constitute an
irrevocable offer to purchase:
(1) the number of Outstanding shares of Auction
Preferred specified in such Bid if the Applicable Rate
determined on such Auction Date shall be higher than the rate
per annum specified in such Bid; or
(2) such number or a lesser number of Outstanding shares
of Auction Preferred to be determined as set forth in
Subsections (e)(i)(E) and (e)(iv) if the Applicable Rate
determined on such Auction Date shall be equal to the rate per
annum specified therein.
(c) Submission of Orders by Broker-Dealers to Auction Agent.
(i) Each Broker-Dealer shall submit in writing to the Auction Agent
prior to the Submission Deadline on each Auction Date for any Series of
Auction Preferred all Orders obtained by such Broker-Dealer specifying
with respect to each Order:
(A) the name of the Bidder placing such Order;
(B) the aggregate number of Outstanding shares of Auction
Preferred that are the subject of such Order;
(C) to the extent that such Bidder is an Existing Holder:
(1) the number of Outstanding shares of Auction
Preferred, if any, subject to any Hold Order placed by such
Existing Holder;
(2) the number of Outstanding shares of Auction
Preferred, if any, subject to any Bid placed by such Existing
Holder and the rate per annum specified in such Bid; and
(3) the number of Outstanding shares of Auction
Preferred, if any, subject to any Sell Order placed by such
Existing Holder; and
(D) to the extent such Bidder is a Potential Holder, the rate
per annum specified in such Potential Holder's Bid.
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(Each "Hold Order", "Bid" or "Sell Order" as submitted or deemed
submitted by a Broker-Dealer being hereinafter referred to
individually as a "Submitted Hold Order", a "Submitted Bid" or a
"Submitted Sell Order", as the case may be, or as a "Submitted
Order".)
(ii) If any rate per annum specified in any Submitted Bid contains
more than three figures to the right of the decimal point, the Auction
Agent shall round such rate up to the next highest one-thousandth (.001)
of 1%.
(iii) If one or more Orders covering in the aggregate all of the
Outstanding shares of Auction Preferred held by an Existing Holder are not
submitted to the Auction Agent prior to the Submission Deadline for any
reason (including the failure of a Broker-Dealer to contact such Existing
Holder or to submit such Existing Holder's Order or Orders), such Existing
Holder shall be deemed to have submitted a Hold Order covering the number
of Outstanding shares of Auction Preferred held by such Existing Holder
that are not subject to Orders submitted to the Auction Agent.
(iv) A Submitted Order or Submitted Orders of an Existing Holder
that cover in the aggregate more than the number of Outstanding shares of
Auction Preferred held by such Existing Holder will be considered valid in
the following order of priority:
(A) any Submitted Hold Order of such Existing Holder will be
considered valid up to and including the number of Outstanding
shares of Auction Preferred held by such Existing Holder, provided
that, if there is more than one such Submitted Hold Order and the
aggregate number of shares of Auction Preferred subject to such
Submitted Hold Orders exceeds the number of Outstanding shares of
Auction Preferred held by such Existing Holder, the number of shares
of Auction Preferred subject to each of such Submitted Hold Orders
will be reduced pro rata so that such Submitted Hold Orders in the
aggregate will cover exactly the number of Outstanding shares of
Auction Preferred held by such Existing Holder;
(B) any Submitted Bids of such Existing Holder will be
considered valid (in the ascending order of their respective rates
per annum if there is more than one Submitted Bid of such Existing
Holder) for the number of Outstanding shares of Auction Preferred
held by such Existing Holder equal to the difference between (i) the
number of Outstanding shares of Auction Preferred held by such
Existing Holder and (ii) the number of Outstanding shares of Auction
Preferred subject to any Submitted Hold Order of such Existing
Holder referred to in clause (iv)(A) above (and, if more than one
Submitted Bid of such Existing Holder specifies the same rate per
annum and together they cover more than the remaining number of
shares of Auction Preferred that can be the subject of valid
Submitted Bids of such Existing Holder after application of clause
(iv)(A) above and of the foregoing portion of this clause (iv)(B) to
any Submitted Bid or Submitted Bids of such Existing Holder
specifying a lower rate or rates per annum, the number of shares of
Auction Preferred subject to each of such Submitted Bids specifying
the same rate per annum will be reduced pro rata so that such
Submitted Bids, in the aggregate, cover exactly such remaining
number of Outstanding shares of Auction Preferred of such Existing
Holder).
(C) any Submitted Sell Order of an Existing Holder will be
considered valid up to and including the excess of the number of
Outstanding shares of Auction Preferred held by such Existing Holder
over the sum of (a) the number of shares of Auction Preferred
subject to Submitted Hold Orders by such Existing Holder referred to
in clause (iv)(A) above and (b)
49
<PAGE>
the number of shares of Auction Preferred subject to valid Submitted
Bids by such Existing Holder referred to in clause (iv)(B) above;
provided that, if there is more than one Submitted Sell Order of
such Existing Holder and the number of shares of Auction Preferred
subject to such Submitted Sell Orders is greater than such excess,
the number of shares of Auction Preferred subject to each of such
Submitted Sell Orders will be reduced pro rata so that such
Submitted Sell Orders, in the aggregate, will cover exactly the
number of shares of Auction Preferred equal to such excess.
The number of Outstanding shares of Auction Preferred, if any, subject to
Submitted Bids of such Existing Holder not valid under clause (iv)(B) above
shall be treated as the subject of a Submitted Bid by a Potential Holder at the
rate per annum specified in such Submitted Bids.
(v) If there is more than one Submitted Bid by any Potential Holder
in any Auction, each such Submitted Bid shall be considered a separate
Submitted Bid with respect to the rate per annum and number of shares of
Auction Preferred specified therein.
(d) Determination of Sufficient Clearing Bids, Winning Bid Rate and
Applicable Rate.
(i) Not earlier than the Submission Deadline on each Auction Date
for any Series of Auction Preferred, the Auction Agent shall assemble all
Orders submitted or deemed submitted to it by the Broker-Dealers and shall
determine:
(A) the excess of the total number of Outstanding shares of
Auction Preferred over the number of shares of Auction Preferred
that are the subject of Submitted Hold Orders (such excess being
hereinafter referred to as the "Available Shares of Auction
Preferred");
(B) from the Submitted Orders, whether the number of
Outstanding shares of Auction Preferred that are the subject of
Submitted Bids by Potential Holders specifying one or more rates per
annum equal to or lower than the Maximum Applicable Rate exceeds or
is equal to the sum of:
(1) the number of Outstanding shares of Auction Preferred
that are the subject of Submitted Bids by Existing Holders
specifying one or more rates per annum higher than the Maximum
Applicable Rate, and
(2) the number of Outstanding shares of Auction Preferred
that are subject to Submitted Sell Orders.
(if such excess or such equality exists (other than because
the number of Outstanding shares of Auction Preferred in
clauses (1) and (2) above are each zero because all of the
Outstanding shares of Auction Preferred are the subject of
Submitted Hold Orders), there shall exist "Sufficient Clearing
Bids" and such Submitted Bids by Potential Holders shall be
hereinafter referred to collectively as "Sufficient Clearing
Bids"); and
(C) if Sufficient Clearing Bids exist, the winning bid rate
(the "Winning Bid Rate"), which shall be the lowest rate per annum
specified in the Submitted Bids that if:
(1) each Submitted Bid from Existing Holders specifying
the Winning Bid Rate and all other Submitted Bids from
Existing Holders specifying lower rates per annum
50
<PAGE>
were accepted, thus entitling such Existing Holders to
continue to hold the shares of Auction Preferred that are the
subject of such Submitted Bids, and
(2) each Submitted Bid from Potential Holders specifying
the Winning Bid Rate and all other submitted Bids from
Potential Holders specifying lower rates per annum were
accepted, thus entitling such Potential Holders to purchase
the shares of Auction Preferred that are the subject of such
Submitted Bids, would result in such Existing Holders
described in subclause (C)(1) continuing to hold an aggregate
number of Outstanding shares of Auction Preferred that, when
added to the number of Outstanding shares of Auction Preferred
to be purchased by such Potential Holders described in
subclause (C)(2), would equal or exceed the number of
Available Shares of Auction Preferred.
(ii) In connection with any Auction and promptly after the Auction
Agent has made the determinations pursuant to Subsection (d)(i), the
Auction Agent shall advise the Corporation of the Maximum Applicable Rate
and, based on such determinations, the Applicable Rate for the next
succeeding Dividend Period as follows:
(A) if Sufficient Clearing Bids exist, that the Applicable
Rate for the next succeeding Dividend Period shall be equal to the
Winning Bid Rate;
(B) if Sufficient Clearing Bids do not exist (other than
because all of the Outstanding shares of Auction Preferred are the
subject of Submitted Hold Orders), that the next succeeding Dividend
Period will be a Standard Dividend Period and the Applicable Rate
for the next succeeding Dividend Period determined shall be equal to
the Maximum Applicable Rate for a Standard Dividend Period
determined on the Business Day immediately preceding such Auction;
or
(C) if all of the Outstanding shares of Auction Preferred are
the subject of Submitted Hold Orders, that the Applicable Rate for
the next succeeding Dividend Period shall be equal to 58% of the
Applicable "AA" Composite Commercial Paper Rate, in the case of
Auction Preferred with a Dividend Period of 7 to 48 days, a Standard
Dividend Period or a Short Dividend Period of 183 days or less, 58%
of the Applicable Treasury Bill Rate in the case of Auction
Preferred with a Short Dividend Period of 184 to 364 days, or 58% of
the Applicable Treasury Note Rate, in the case of Auction Preferred
with a Long Dividend Period, in effect on the Auction Date.
(e) Acceptance and Rejection of Submitted Bids and Submitted Sell Orders
and Allocation of Shares of Auction Preferred. Based on the determinations made
pursuant to Subsection (d)(i), the Submitted Bids and Submitted Sell Orders
shall be accepted or rejected and the Auction Agent shall take such other action
as set forth below:
(i) If Sufficient Clearing Bids have been made, subject to the
provisions of Subsections (e)(iii) and (e)(iv), Submitted Bids and
Submitted Sell Orders shall be accepted or rejected in the following order
of priority and all other Submitted Bids shall be rejected:
(A) the Submitted Sell Orders of Existing Holders shall be
accepted and the Submitted Bid of each of the Existing Holders
specifying any rate per annum that is higher than the Winning Bid
Rate shall be rejected, thus requiring each such Existing Holder to
sell the
51
<PAGE>
Outstanding shares of Auction Preferred that are the subject of such
Submitted Sell Order or Submitted Bid;
(B) the Submitted Bid of each of the Existing Holders
specifying any rate per annum that is lower than the Winning Bid
Rate shall be accepted, thus entitling each such Existing Holder to
continue to hold the Outstanding shares of Auction Preferred that
are the subject of such Submitted Bid;
(C) the Submitted Bid of each of the Potential Holders
specifying any rate per annum that is lower than the Winning Bid
Rate shall be accepted;
(D) the Submitted Bid of each of the Existing Holders
specifying a rate per annum that is equal to the Winning Bid Rate
shall be accepted, thus entitling each such Existing Holder to
continue to hold the Outstanding shares of Auction Preferred that
are the subject of such Submitted Bid, unless the number of
Outstanding shares of Auction Preferred subject to all such
Submitted Bids shall be greater than the number of Outstanding
shares of Auction Preferred ("Remaining Shares of Auction
Preferred") equal to the excess of the Available Shares of Auction
Preferred over the number of Outstanding shares of Auction Preferred
subject to Submitted Bids described in Subsections (e)(i)(B) and
(e)(i)(C), in which event the Submitted Bids of each such Existing
Holder shall be rejected, and each such Existing Holder shall be
required to sell Outstanding shares of Auction Preferred, but only
in an amount equal to the difference between (1) the number of
Outstanding shares of Auction Preferred then held by such Existing
Holder subject to such Submitted Bid and (2) the number of shares of
Auction Preferred obtained by multiplying (x) the number of
Remaining Shares of Auction Preferred by (y) a fraction, the
numerator of which shall be the number of Outstanding shares of
Auction Preferred held by such Existing Holder subject to such
Submitted Bid and the denominator of which shall be the aggregate
number of Outstanding shares of Auction Preferred subject to such
Submitted Bids made by all such Existing Holders that specified a
rate per annum equal to the Winning Bid Rate; and
(E) the Submitted Bid of each of the Potential Holders
specifying a rate per annum that is equal to the Winning Bid Rate
shall be accepted, but only in an amount equal to the number of
Outstanding shares of Auction Preferred obtained by multiplying (x)
the difference between the Available Shares of Auction Preferred and
the number of Outstanding shares of Auction Preferred subject to
Submitted Bids described in Subsections (e)(i)(B), (e)(i)(C) and
(e)(i)(D) by (y) a fraction, the numerator of which shall be the
number of Outstanding shares of Auction Preferred subject to such
Submitted Bid and the denominator of which shall be the sum of the
number of Outstanding shares of Auction Preferred subject to such
Submitted Bids made by all such Potential Holders that specified
rates per annum equal to the Winning Bid Rate.
(ii) If Sufficient Clearing Bids have not been made (other than
because all of the Outstanding shares of Auction Preferred are subject to
Submitted Hold Orders), subject to the provisions of Subsection (e)(iii),
Submitted Orders shall be accepted or rejected as follows in the following
order of priority and all other Submitted Bids of Potential Holders shall
be rejected:
(A) the Submitted Bid of each Existing Holder specifying any
rate per annum that is equal to or lower than the Maximum Applicable
Rate shall be accepted, thus entitling such
52
<PAGE>
Existing Holder to continue to hold the Outstanding shares of
Auction Preferred that are the subject of such Submitted Bid;
(B) the Submitted Bid of each Potential Holder specifying any
rate per annum that is equal to or lower than the Maximum Applicable
Rate shall be accepted, thus requiring such Potential Holder to
purchase the Outstanding shares of Auction Preferred that are the
subject of such Submitted Bid; and
(C) the Submitted Bids of each Existing Holder specifying any
rate per annum that is higher than the Maximum Applicable Rate shall
be rejected, thus requiring each such Existing Holder to sell the
Outstanding shares of Auction Preferred that are the subject of such
Submitted Bid, and the Submitted Sell Orders of each Existing Holder
shall be accepted, in both cases only in an amount equal to the
difference between (1) the number of Outstanding shares of Auction
Preferred then held by such Existing Holder subject to such
Submitted Bid or Submitted Sell Order and (2) the number of shares
of Auction Preferred obtained by multiplying (x) the difference
between the Available Shares of Auction Preferred and the aggregate
number of Outstanding shares of Auction Preferred subject to
Submitted Bids described in Subsections (e)(ii)(A) and (e)(ii)(B) by
(y) a fraction, the numerator of which shall be the number of
Outstanding shares of Auction Preferred held by such Existing Holder
subject to such Submitted Bid or Submitted Sell Order and the
denominator of which shall be the aggregate number of Outstanding
shares of Auction Preferred subject to all such Submitted Bids and
Submitted Sell Orders
(iii) If, as a result of the procedures described in Subsections
(e)(i) or (e)(ii), any Existing Holder would be entitled or required to
sell or any Potential Holder would be entitled or required to purchase, a
fraction of a share of Auction Preferred on any Auction Date, the Auction
Agent shall, in such manner as in its sole discretion it shall determine,
round up or down the number of shares of Auction Preferred to be purchased
or sold by any Existing Holder or Potential Holder on such Auction Date so
that only whole shares of Auction Preferred will be entitled or required
to be sold or purchased.
(iv) If, as a result of the procedures described in Subsection
(e)(i), any Potential Holder would be entitled or required to purchase
less than a whole share of Auction Preferred on any Auction Date, the
Auction Agent shall, in such manner as in its sole discretion it shall
determine, allocate shares of Auction Preferred for purchase among
Potential Holders so that only whole shares of Auction Preferred are
purchased on such Auction Date by any Potential Holder, even if such
allocation results in one or more of such Potential Holders not purchasing
any shares of Auction Preferred on such Auction Date.
(v) Based on the results of each Auction, the Auction Agent shall
determine, with respect to each Broker-Dealer that submitted Bids or Sell
Orders on behalf of Existing Holders or Potential Holders, the aggregate
number of Outstanding shares of Auction Preferred to be purchased and the
aggregate number of Outstanding shares of Auction Preferred to be sold by
such Potential Holders and Existing Holders and, to the extent that such
aggregate number of Outstanding shares of Auction Preferred to be
purchased and such aggregate number of Outstanding shares of Auction
Preferred to be sold differ, the Auction Agent shall determine to which
other Broker-Dealer or Broker-Dealers acting for one or more purchasers
such Broker-Dealer shall deliver, or from which other Broker-Dealer or
Broker-Dealers acting for one or more sellers such Broker-Dealer shall
receive, as the case may be, Outstanding shares of Auction Preferred.
53
<PAGE>
SECTION 8. Auction Agent.
The Corporation shall use its best efforts to maintain, pursuant to a
written agreement (the "Auction Agent Agreement"), an Auction Agent with respect
to each Series of Auction Preferred, to act in accordance with the provisions
set forth herein with respect to such Series.
SECTION 9. Remarketing Procedures.
(a) Determination of Dividend Periods and Dividend Rates for Remarketing
MAPS. Subject to Section 3 hereof, the duration of each subsequent Dividend
Period and the dividend rate for each subsequent Dividend Period with respect to
any share of Remarketing Preferred will be established by a Remarketing Agent
and will be conclusive and binding on the Corporation and the Holder of such
share of Remarketing Preferred. Each Remarketing Agent will establish dividend
rates, not in excess of the Maximum Applicable Rate, for each Dividend Period
which it determines will be the lowest rate at which tendered Shares of
Remarketing Preferred would be remarketed at $250,000 per share. In establishing
each Dividend Period and dividend rate, each Remarketing Agent will establish
Dividend Periods and dividend rates which it determines will result in the most
favorable financing alternative for the Corporation based on the then-current
Marketing Conditions.
(b) Remarketing; Tender for Remarketing. The following procedures shall be
applicable to each share of Remarketing Preferred:
(i) The Remarketing Agent. Each Remarketing Agent shall use its best
efforts, on behalf of the Holders thereof, to remarket all shares of
Remarketing Preferred tendered for sale by Remarketing for which it is
acting as Remarketing Agent without charge to such Holder, only at
$250,000 per share, provided that no such Remarketing Agent shall be
obligated to remarket such Remarketing Preferred if there shall be a
material misstatement or omission in any disclosure document provided by
the Corporation and used in connection with the Remarketing of such
Remarketing Preferred or at any time such Remarketing Agent shall have
determined that it is not advisable to remarket Remarketing Preferred by
reason of: (i) a pending or proposed change in applicable tax laws, (ii) a
material adverse change in the financial condition of the Corporation,
(iii) a banking moratorium, (iv) domestic or international hostilities,
(v) an amendment of the provisions hereof which materially and adversely
changes the nature of the shares of Remarketing Preferred or the
Remarketing Procedures or (vi) a Failure to Deposit. Any Remarketing Agent
may, but shall not be obligated to, purchase tendered Remarketing
Preferred for its own account. Should the Remarketing Agent for any share
of Remarketing Preferred not succeed in Remarketing all such shares of
Remarketing Preferred so tendered for Remarketing on any date, such
Remarketing Agent shall select the shares of such Remarketing Preferred to
be sold from those tendered pro rata. Payments in the amount of $250,000
per share of Remarketing Preferred remarketed shall be made by the Tender
Agent by crediting such payments to the accounts of the Holders thereof
maintained by the Tender Agent or, to the extent duly requested of the
Tender Agent by Holders, by wire or other transfer in immediately
available funds to their accounts with commercial banks in the United
States. If for any reason a share of Remarketing Preferred is not
remarketed on the date of tender, such share will be retained by its
Holder. Until remarketed, each such share of Remarketing Preferred will
have successive Dividend Periods of one day and will be entitled to
dividends, payable on each succeeding Business Day at the Maximum
Applicable Rate.
(ii) Notice of Shares of Remarketing Preferred to be Retained. Each
share of Remarketing Preferred will be deemed to have been tendered for
sale by Remarketing on the last day of each
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<PAGE>
Dividend Period, unless the Holder thereof gives irrevocable notice to the
contrary to the Remarketing Agent for such share of Remarketing Preferred
or if so instructed by such Remarketing Agent, to the Tender Agent. Such
notice, which may be telephonic or written, must be delivered, prior to
3:00 P.M., New York City time, on the Business Day immediately preceding
the last day of a Dividend Period or on the earlier day specified in a
notice, if any, mailed by the Tender Agent at the direction of such
Remarketing Agent to such record holder at its address as the same appears
on the Stock Books of the Corporation, which day will be a Business Day at
least four Business Days after the mailing of such notice. The notice from
such Holder of an election to retain shares of Remarketing Preferred shall
state:
(A) the number of shares of such Remarketing Preferred held by
the Securities Depository or the Remarketing Depository, and
(B) the number of such shares of Remarketing Preferred which
shall be deemed not to have been so tendered.
(iii) Shares Deemed to Have Been Tendered. The failure to give
notice of an election to retain any shares of Remarketing Preferred as
provided in (b)(ii) above will constitute the irrevocable tender for sale
by Remarketing of such shares of Remarketing Preferred. Certificates
representing shares of Remarketing Preferred remarketed will be issued to
the Securities Depository or the Remarketing Depository, as the case may
be, irrespective of whether the certificates formerly representing such
shares of Remarketing Preferred have been delivered to the Tender Agent. A
Holder which has not given notice that it will retain its shares of
Remarketing Preferred shall have no further rights with respect to such
shares of Remarketing Preferred upon the Remarketing of such shares of
Remarketing Preferred, except the right to receive any declared but unpaid
dividends thereon and the proceeds of the Remarketing of such shares.
(iv) Funds for Purchase of Shares. Payments to Holders of shares of
Remarketing Preferred remarketed will be made solely from the proceeds
received from the purchasers of such shares in a Remarketing. Neither the
Corporation, the Tender Agent nor any Remarketing Agent shall be obligated
to provide funds to make payment to the holders of shares of Remarketing
Preferred tendered for Remarketing.
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<PAGE>
(c) The Remarketing Process. The Remarketing process will be
conducted on the following schedule and in the following manner (all times
are New York City time):
<TABLE>
<CAPTION>
The Last Business Day of a Dividend Period:*
Beginning Not Later Than
<S> <C>
1:00 P.M ........................................ The Remarketing Agent for the shares of Remarketing
Preferred will determine and, upon request, make
available to all interested persons non-binding
indications of Dividend Periods and dividend rates
based upon then current Marketing Conditions. Each
Holder may obtain a binding commitment as to the
specific Dividend Period or Dividend Periods and the
related Applicable Rate or Applicable Rates which will
be applicable to such Holder's shares should such
Holder elect to retain them.
At 3:00 P.M ..................................... Holders of shares of Remarketing Preferred will be
deemed to have tendered shares of Remarketing Preferred
for sale by Remarketing at $250,000 per share unless
they have given contrary instructions to the
Remarketing Agent for such shares of Remarketing
Preferred or, if so instructed by such Remarketing
Agent, to the Tender Agent.
After 3:00 P.M .................................. The applicable Remarketing Agent will solicit and
receive orders from prospective investors to purchase
tendered shares of Remarketing Preferred. A purchaser,
at the time of its agreement to purchase shares of
Remarketing Preferred, may obtain a binding commitment
as to the specific Dividend Period or Dividend Periods
and the related Applicable Rate or Applicable Rates for
such shares of Remarketing Preferred based upon
then-current Marketing Conditions.
<FN>
- --------
* Or such other time and day as may have been specified in a notice mailed
to the holders of Remarketing Preferred.
</FN>
</TABLE>
56
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
First Business Day of Next Dividend Period:
<S> <C>
Opening of Business The applicable Remarketing Agent will continue, if
necessary, remarketing shares of Remarketing Preferred
as described above.
By 1:00 P.M ..................................... The applicable Remarketing Agent will have completed
Remarketing and will advise the Tender Agent as to the
Applicable Rate and Dividend Period applicable to each
share of Remarketing Preferred commencing a Dividend
Period on that day and of any failure to remarket.
By 2:30 P.M ..................................... New Holders must deliver the purchase price as
instructed by the applicable Remarketing Agent. Former
Holders will be paid the proceeds of the Remarketing of
their shares by the Tender Agent (upon surrender of
their certificates, if applicable).
</TABLE>
SECTION 10. The Remarketing Agent.
The Corporation will take all reasonable action necessary so that, at all
times, at least one investment bank, broker, dealer or other organization
qualified to remarket shares of Remarketing Preferred and to establish Dividend
Periods and Applicable Rates is acting as Remarketing Agent for each share of
Remarketing Preferred.
SECTION 11. Book Entry System.
(a) Shares of Preferred Stock with Dividend Periods of 7 days or longer
shall be represented by a global certificate or certificates registered in the
name of a nominee of the Securities Depository, as depository for such shares of
Preferred Stock. Shares of Remarketing Preferred with Dividend Periods of less
than 7 days shall be represented by a global certificate or certificates
registered in the name of a nominee of the Remarketing Depository, as depository
for such shares of Remarketing Preferred.
(b) All of the Outstanding shares of Auction Preferred of each Series
shall be represented by a single certificate for each Series registered in the
name of the nominee of the Securities Depository unless otherwise required by
law or unless there is no Securities Depository. If there is no Securities
Depository, shares of Auction Preferred shall be registered in the Stock Books
in the name of the Existing Holder thereof and such Existing Holder thereupon
will be entitled to receive a certificate therefor and be required to deliver a
certificate therefor upon transfer or exchange thereof.
(c) Each Series of Remarketing Preferred shall be represented by a
separate global security or global securities and shares of Remarketing
Preferred having different Dividend Payment Dates, dividend rates, redemption
provisions or Percentages, if any, shall be represented by a separate global
security.
(d) Interests in shares of Preferred Stock represented by a global
security will be shown on, and transfers thereof will be effected only through,
records maintained by the respective depository.
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<PAGE>
(e) If the Securities Depository should resign and the Corporation not
select a substitute securities depository, physical delivery of certificates
shall be made in the names of designated transferees in exchange for the global
security or securities held for the account of the Securities Depository.
SECTION 12. Miscellaneous.
(a) So long as the dividend rate is based on the results of an Auction or
Remarketing, a Holder (i) may sell, transfer or otherwise dispose of shares of
Auction Preferred only pursuant to a Bid or Sell Order in accordance with the
Auction Procedures or to or through a Broker-Dealer or to a Person that has
delivered a signed copy of a Purchaser's Letter to a Broker-Dealer, and in the
case of all transfers other than pursuant to Auctions, such Existing Holder of
the shares of Auction Preferred, its Broker-Dealer or its Participant advises
the Auction Agent of such transfer, (ii) may transfer shares of Remarketing
Preferred only pursuant to a tender of such shares to the Tender Agent or to a
person that has delivered a signed copy of a Purchaser's Letter to a Remarketing
Agent, and in the case of all transfers of shares of Remarketing Preferred other
than pursuant to a tender of such shares, the holder of the shares so
transferred advises a Remarketing Agent of such transfer and (iii) unless
otherwise required by law, shall have its ownership of shares of Preferred Stock
maintained in book entry form by the Securities Depository or, in the case of
shares of Remarketing Preferred with a Dividend Period of less than 7 days, the
Remarketing Depository.
(b) Each Remarketing Agent will be required to register on a list
maintained pursuant to a Remarketing Agreement a transfer of shares of
Remarketing Preferred for which it is the Remarketing Agent from a holder to
another person only if such transfer is made to a person that has delivered a
signed copy of a Purchaser's Letter to such Remarketing Agent and if (i) such
transfer is pursuant to a Remarketing or (ii) such Remarketing Agent has been
notified in writing (A) by such holder of such transfer or (B) by any person
that purchased or sold such Remarketing Preferred in a Remarketing of the
failure of such Remarketing Preferred to be delivered or paid for, as the case
may be, in connection with such Remarketing. A Remarketing Agent is not required
to register a transfer of Remarketing Preferred pursuant to clause (ii) above on
or prior to the Business Day immediately preceding the first day of a subsequent
Dividend Period for such Remarketing Preferred unless it receives the written
notice required by such clause (ii) by 3:00 P.M., New York City time, on the
second Business Day preceding the first day of such subsequent Dividend Period.
Such Remarketing Agent will rescind a transfer registered on such list as a
result of a Remarketing if the Remarketing Agent is notified in writing of the
failure of shares of Remarketing Preferred to be delivered or paid for as
required. Any transfer of shares of Remarketing Preferred made in violation of
the terms of a Purchaser's Letter may affect the right of the Person acquiring
such shares to participate in Remarketings.
(c) (i) If the Method of determining the Dividend Rate for some or all of
the Series of Preferred Stock is the Auction Method, the Corporation or
any Affiliate of the Corporation may not submit for its own account a Bid
or Hold Order in an Auction. If the Corporation or any Affiliate holds
shares of Auction Preferred for its own account, it must submit a Sell
Order in the next auction with respect to such shares. Any Broker-Dealer
that is an Affiliate of the Corporation may not submit for its own account
Bid Orders or Hold Orders in Auctions. If such affiliated Broker-Dealer
holds shares of Auction Preferred for its own account, it must submit a
Sell Order in the next Auction with respect to such shares of Auction
Preferred.
(ii) The Corporation or any Affiliate of the Corporation may acquire,
hold or dispose of shares of Remarketing Preferred. Subject to such
limitations as the Corporation and the
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<PAGE>
Remarketing Agent may agree, it and its Affiliates will purchase shares of
Remarketing Preferred, if any, during Remarketings only after 3:00 P.M. on
the Business Day immediately preceding the first day of each subsequent
Dividend Period and only at Applicable Rates and for Dividend Periods
established by the Remarketing Agents without regard to such offers by the
Corporation or its Affiliates and will tender shares of Remarketing
Preferred for Remarketing only upon at least 10 days' prior notice to the
Remarketing Agents; provided, however, that if the then current Dividend
Period is less than 10 days, the Corporation will give notice to the
Remarketing Agent on the day such Dividend Period of less than 10 days
commences. In the event that the Corporation or its Affiliates purchase
shares of Remarketing Preferred for their respective accounts, all shares
of Remarketing Preferred tendered by other holders, including any such
Remarketing Preferred owned by a Remarketing Agent, will be remarketed
before the Remarketing of any such Remarketing Preferred owned by the
Corporation or its Affiliates. If any shares of Remarketing Preferred
tendered for Remarketing are not sold, any shares of Remarketing Preferred
tendered for Remarketing by the Corporation or an Affiliate of the
Corporation, up to the number of such shares not so sold, will be deemed
not to have been so tendered.
(d) The purchase price of each share of Preferred Stock which is sold
either through the Auction Procedures or the Remarketing Procedures shall be
$250,000.
(e) If a holder of Converted Auction Preferred fails to give irrevocable
notice otherwise to the Remarketing Agent for such Remarketing Preferred (or, if
so instructed by such Remarketing Agent, to the Tender Agent) by no later than
3:00 P.M., New York City time, on the Business Day immediately preceding the
first day of the subsequent Dividend Period applicable thereto, or such other
day as is specified in a notice delivered in the manner set forth in Section
9(b)(ii), such holder will be deemed to have tendered such Converted Auction
Preferred for sale by Remarketing on such Business Day.
(f) An Auction will be held in respect of each Series of Converted
Remarketing Preferred on the Initial Auction Date. If a holder of Converted
Remarketing Preferred does not submit an Order in such Auction, such holder will
be deemed to have submitted a Sell Order in such Auction.
SECTION 13. Exclusive Remedy.
In the event that dividends are not timely declared on the shares of
Preferred Stock, the exclusive remedy of Holders against the Corporation shall
be as set forth in this part of Article IV (B) and in no event shall Holders of
such shares have a specifically enforceable right to the declaration of
dividends.
SECTION 14. Additional Terms.
(a) The Board of Directors may interpret the provisions of this part of
Article IV (B) to resolve any inconsistency or ambiguity or remedy any formal
defect.
(b) The headings of the various subdivisions of this part of Article IV
(B) are for convenience of reference only and shall not affect the
interpretation of any of the provisions hereof.
----------
(C) Except as otherwise provided by the General Corporation Law of the
State of Delaware or by any resolution heretofore or hereafter adopted by the
Board of Directors fixing the relative powers, preferences and rights and the
qualifications, limitations or restrictions of any additional series of
59
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Preferred Stock, the entire voting power of the shares of the Company for the
election of directors and for all other purposes, as well as all other rights
appertaining to shares of the Company, shall be vested exclusively in the Common
Stock. Each share of Common Stock shall have one vote upon all matters to be
voted on by the holders of the Common Stock, and shall be entitled to
participate equally in all dividends payable with respect to the Common Stock
and to share ratably, subject to the rights and preferences of any Preferred
Stock, in all assets of the Company in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company, or upon
any distribution of the assets of the Company.
(D) The Company shall not, without either the prior approval of a majority
of the total number of shares then issued and outstanding and entitled to vote
or the receipt by the Company of a favorable opinion issued by a nationally
recognized investment banking firm designated by the Committee of Equity
Security Holders of Texaco Inc. appointed in the Company's jointly administered
Chapter 11 case in the United States Bankruptcy Court for the Southern District
of New York or its last chairman (or his designee) to the effect that the
proposed issuance is fair from a finance point of view to the stockholders of
the Company issue to its stockholders generally (i) any warrant or other right
to purchase any security of the Company, any successor thereto or any other
person or entity or (ii) any security of the Company containing any such right
to purchase, which warrant, right or security (a) is exercisable, exchangeable
or convertible, based or conditioned in whole or in part on (I) a change of
control of the Company or (II) the owning or holding of any number or percentage
of outstanding shares or voting power or any offer to acquire any number of
shares or percentage of voting power by any entity, individual or group of
entities and/or individuals or (b) discriminates among holders of the same class
of securities (or the class of securities for which such warrant or right is
exercisable or exchangeable) of the Company or any successor thereto.
V.
The Company is to have perpetual existence.
VI.
The private property of the stockholders is not to be subject to the
payment of corporate debts to any extent whatever.
VII.
No holder of stock of the Company shall have any preferential right of
subscription to any share of any class of stock of the Company issued or sold,
or to any obligations convertible into stock of the Company, or any right of
subscription to any thereof other than such, if any, as the Board of Directors
in its discretion may determine, and at such prices as the Board of Directors
may fix.
VIII.
The Company may use its surplus earnings or accumulated profits in the
purchase or acquisition of its own capital stock from time to time as its Board
of Directors shall determine, and such capital stock so purchased may, if the
directors so determine, be held in the treasury of the Company as treasury
stock, to be thereafter disposed of in such manner as the directors shall deem
proper.
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IX.
(A) Number, Election and Terms of Directors. Except as otherwise fixed by
or pursuant to the provisions of Article IV hereof relating to the rights of the
holders of any class or series of stock having preference over the Common Stock
as to dividends or upon liquidation to elect additional directors under
specified circumstances, the number of the directors of the Company shall be
fixed from time to time by or pursuant to the by-laws. The directors, other than
those who may be elected by the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, shall be
classified, with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible, as shall be provided in
the manner specified in the by-laws, one class to be originally elected for a
term expiring at the annual meeting of stockholders to be held in 1985, another
class to be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1986, and another class to be originally elected for
a term expiring at the annual meeting of stockholders to be held in 1987, with
each class to hold office until its successor is elected and qualified. At each
annual meeting of the stockholders of the Company, the successors of the class
of directors whose term expires at that meeting shall be elected to hold office
for a term expiring at the annual meeting of stockholders held in the third year
following the year of their election.
(B) Stockholder Nomination of Director Candidates. Advance notice of
stockholder nominations for the election of directors shall be given in the
manner provided in the by-laws.
(C) Newly Created Directorships and Vacancies. Except as otherwise
provided for or fixed by or pursuant to the provisions of Article IV hereof
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, newly created directorships resulting
from any increase in the number of directors and any vacancies on the Board of
Directors resulting from death, resignation or disqualification, or other cause
shall be filled by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board of Directors. Any
director so elected shall stand for election (for the balance of his term) at
the next annual meeting of stockholders, unless his term expires at such annual
meeting. Any vacancy on the Board of Directors resulting from removal by
stockholder vote shall be filled only by the vote of a majority of the voting
power of all shares of the Company entitled to vote generally in the election of
directors, voting together as a single class.
(D) Removal. Subject to the rights of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, any director may be removed from
office, with or without cause, only by the affirmative vote of the holders of 66
2/3% of the combined voting power of the then outstanding shares of stock
entitled to vote generally in the election of directors, voting together as a
single class.
(E) Amendment, Repeal, Etc. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 66 2/3% of the voting power of all shares of the Company
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article IX.
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X.
In furtherance, and not in limitation of the powers conferred by statute,
the Board of Directors is expressly authorized:
(A) to fix in the by-laws from time to time the number of directors of the
Company, none of whom need be stockholders;
(B) to fix the amount to be reserved as working capital over and above its
capital stock paid in;
(C) to borrow money and to make and issue notes, bonds, debentures,
obligations and evidence of indebtedness of all kinds, with or without the
privilege of conversion into stock of the Company; and also to authorize and
cause to be executed mortgages and liens upon the real and personal property of
the Company and conveyances of its real estate;
(D) from time to time to determine whether and to what extent, and at what
times and places, and under what conditions and regulations, the accounts and
books of the Company (other than the stock ledger), or any of them, shall be
open to inspection of stockholders; and no stockholder shall have any right of
inspecting any account book or document of the Company except as conferred by
statute, unless authorized by a resolution of the stockholders or directors; and
(E) if the by-laws so provide, to designate by resolution three or more of
its number to constitute an executive committee, which committee shall, for the
time being, have and exercise such of the powers of the Board of Directors in
the management of the business and affairs of the Company, and have power to
authorize the seal of the Company to be affixed to all papers which may require
it.
The Company may in its by-laws confer powers upon its directors in
addition to the foregoing and in addition to the powers and authorities
expressly conferred upon them by statute.
Both stockholders and directors shall have power, if the by-laws so
provide, to hold their meeting and to have one or more offices within or without
the State of Delaware, and to keep the books of the Company (subject to the
provisions of applicable laws), outside of the State of Delaware at such places
as may be from time to time designated by the Board of Directors.
XI.
Any action required or permitted to be taken by the stockholders of the
Company must be effected at a duly called annual or special meeting of such
holders and may not be effected by any consent in writing by such holders.
Except as otherwise required by law and subject to the rights of the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, special meetings of stockholders of the Company
may be called only by the Board of Directors pursuant to a resolution approved
by a majority of the entire Board of Directors. Notwithstanding anything
contained in this Certificate of Incorporation to the contrary, the affirmative
vote of the holders of at least 66 2/3% of the voting power of all shares of the
Company entitled to vote generally in the election of directors, voting together
as a single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article XI.
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XII.
The Board of Directors shall have power to make, alter, amend and repeal
the by-laws (except so far as the by-laws adopted by the stockholders shall
otherwise provide). Any by-laws made by the directors under the powers conferred
hereby may be altered, amended or repealed by the directors or by the
stockholders. Notwithstanding the foregoing and anything contained in this
Certificate of Incorporation to the contrary, Section 2 of Article I and
Sections 1,2,3 and 4 of Article II of the by-laws shall not be altered, amended
or repealed and no provision inconsistent therewith shall be adopted without the
affirmative vote of the holders of at least 66 2/3% of the voting power of all
the shares of the Company entitled to vote generally in the election of
directors, voting together as a single class. Notwithstanding anything contained
in this Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 66 2/3% of the voting power of all shares of the Company
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article XII.
XIII.
(A) Vote Required for Certain Business Combinations.
(1) Higher Vote for Certain Business Combinations. In addition to
any affirmative vote required by law or this Certificate of Incorporation,
and except as otherwise expressly provided in Section B of this Article
XIII:
(a) any merger or consolidation of the Company or any
Subsidiary (as hereinafter defined) with (i) any Interested
Stockholder (as hereinafter defined) or (ii) any other Company
(whether or not itself an Interested Stockholder) which is, or after
such merger or consolidation would be, an Affiliate (as hereinafter
defined) of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions)
to or with any Interested Stockholder or any Affiliate of any
Interested Stockholder of any assets of the Company or any
Subsidiary having an aggregate Fair Market Value of $100 million or
more; or
(c) the issuance or transfer by the Company or any Subsidiary
(in one transaction or a series of transactions) of any securities
of the Company or any Subsidiary to any Interested Stockholder or
any Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate Fair Market Value of $100 million or more or;
(d) the adoption of any plan or proposal for the liquidation
or dissolution of the Company proposed by or on behalf of an
Interested Stockholder or any Affiliate of any Interested
Stockholder; or
(e) any reclassification of securities (including any reverse
stock split), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise
involving an Interested Stockholder) which has the effect, directly
or indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible securities
of the Company or any Subsidiary which is directly or indirectly
owned by any Interested
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Stockholder or any Affiliate of any Interested Stockholder; shall
require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the
Company entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class (it being
understood that for purposes of this Article XIII, each share of the
Voting Stock shall have the number of votes granted to it pursuant
to Article IV of this Certificate of Incorporation). Such
affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that a lesser percentage may be specified,
by law or in any agreement with any national securities exchange or
otherwise.
(2) Definition of "Business Combination." The term "Business
Combination" as used in this Article XIII shall mean any transaction which
is referred to in any one or more of clauses (a) through (e) of paragraph
(1) of this Section (A).
(B) When Higher Vote is Not Required. The provisions of Section A of this
Article XIII shall not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative vote as is
required by law and any other provision of this Certificate of Incorporation, if
all of the conditions specified in either of the following paragraphs (1) and
(2) are met:
(1) Approval by Disinterested Directors. The Business Combination
shall have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
(2) Price and Procedure Requirements. All of the following
conditions shall have been met:
(a) The aggregate amount of the cash and the Fair Market Value
(as hereinafter defined) as of the date of the consummation of the
Business Combination of consideration other than cash to be received
per share by holders of Common Stock in such Business Combination
shall be at least equal to the higher of the following:
(i)(if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder
for any shares of Common Stock acquired by it (a) within the
two-year period immediately prior to the first publication
announcement of the proposal of the Business Combination (the
"Announcement Date") or (b) in the transaction in which it
became an Interested Stockholder, whichever is higher; and
(ii) the Fair Market Value per share of Common Stock on
the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (such latter date
is referred to in this Article XIII as the "Determination
Date"), whichever is higher.
(b) The aggregate amount of the cash and the Fair Market Value
as of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any other class of outstanding Voting Stock shall be at
least equal to the highest of the following (it being intended that
the requirements of this paragraph 2(b) shall be required to be met
with respect to every class of outstanding Voting Stock, whether or
not the Interested Stockholder has previously acquired any shares of
a particular class of Voting Stock):
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(i)(if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the Interested Stockholder
for any shares of such class of Voting Stock acquired by it
(a) within the two-year period immediately prior to the
Announcement Date or (b) in the transaction in which it became
an Interested Stockholder, whichever is higher;
(ii) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of Voting
Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Company; and
(iii) the Fair Market Value per share of such class of
Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher.
(c) The consideration to be received by holders of a
particular class of outstanding Voting Stock (including Common
Stock) shall be in cash or in the same form as the Interested
Stockholder has previously paid for shares of such class of Voting
Stock. If the Interested Stockholder has paid for shares of any
class of Voting Stock with varying forms of consideration, the form
of consideration for such class of Voting Stock shall be either cash
or the form used to acquire the largest number of shares of such
class of Voting Stock previously acquired by it. The price
determined in accordance with paragraph 2(a) and 2(b) of this
Section B shall be subject to appropriate adjustment in the event of
any stock dividend, stock split, combination of shares or similar
event.
(d) After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination: (i) except as approved by a majority of the
Disinterested Directors, there shall have been no failure to declare
and pay at the regular date therefor any full quarterly dividends
(whether or not cumulative) on the outstanding Preferred Stock; (ii)
there shall have been (A) no reduction in the annual rate of
dividends paid on the Common Stock (except as necessary to reflect
any subdivision of the Common Stock), except as approved by a
majority of the Disinterested Directors, and (B) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which
has the effect of reducing the number of outstanding shares of the
Common Stock unless the failure so to increase such annual rate is
approved by a majority of the Disinterested Directors; and (iii)
such Interested Stockholder shall have not become the beneficial
owner of any additional shares of Voting Stock except as part of the
transaction which results in such Interested Stockholder becoming an
Interested Stockholder.
(e) After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Company, whether in anticipation of or in connection
with such Business Combination or otherwise.
(f) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules
or regulations) shall be mailed to public stockholders of the
Company at least 30 days prior to
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the consummation of such Business Combination (whether or not such
proxy or information statement is required to be mailed pursuant to
such Act or subsequent provisions).
(C) Vote Required for Certain Stock Repurchases. In addition to any other
requirement of this Certificate of Incorporation, the affirmative vote of the
holders of at least 50% of the Voting Stock (other than Voting Stock
beneficially owned by a Selling Stockholder (as hereinafter defined)), shall be
required before the Company purchases any outstanding shares of Common Stock at
a price above the Market Price (as hereinafter defined) from a person actually
known by the Company to be a Selling Stockholder, unless the purchase is made by
the Company (i) on the same terms and as a result of an offer made generally to
all holders of Common Stock or (ii) pursuant to statutory appraisal right.
(D) Certain Definitions. For the purposes of this Article XIII:
(1) A "person" shall mean any individual, firm, corporation or other
entity.
(2) "Interested Stockholder" shall mean any person (other than the
Company or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than 20% of the voting power of the outstanding Voting Stock; or
(b) is an Affiliate of the Company and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the
voting power of the then outstanding Voting Stock; or
(c) is an assignee of or has otherwise succeeded to any shares
of Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions
not involving a public offering within the meaning of the Securities
Act of 1933.
(3) A person shall be a "beneficial owner" of any Voting Stock:
(a) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns directly or indirectly;
or
(b) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
(4) For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph 2 of this Section C, the
number of shares of Voting Stock deemed to be outstanding shall include
shares deemed owned through application of paragraph 3 of this Section C
but shall
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not include any other shares which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(5) "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on March 1, 1984.
(6) "Subsidiary" means any corporation of which a majority of any
class of equity security is owned, directly or indirectly, by the Company;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph 2 of this Section C, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Company.
(7) "Disinterested Director" means any member of the Board of
Directors who is unaffiliated with the Interested Stockholder and was a
member of the Board of Directors prior to the time that the Interested
Stockholder became an Interested Stockholder, and any successor of a
Disinterested Director who is unaffiliated with the Interested Stockholder
and is recommended to succeed a Disinterested Director by a majority of
Disinterested Directors then on the Board of Directors.
(8) "Fair Market Value" means: (a) in the case of the stock, the
highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for
New York Stock Exchange-Listed Stocks, or, if such stock is not listed on
such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock
is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by the Board of Directors in good faith; and (b) in the case of
property other than cash or stock, the fair market value of such property
on the date in question as determined by the Board of Directors in good
faith.
(9) "Selling Stockholder" means any person who or which is the
beneficial owner of in the aggregate more than 1% of the outstanding
shares of Common Stock and who or which has purchased or agreed to
purchase any of such shares within the most recent two-year period and who
sells or proposes to sell Common Stock in a transaction requiring the
affirmative vote provided for in Section C of this Article XIII.
(10) "Market Price" means the highest sale price on or during the
period of five trading days immediately preceding the date in question of
a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or if such stock is not quoted on the Composite
Tape on the New York Stock Exchange, or, if such stock is not listed on
such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such stock
is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of stock on or
during the period of five trading days immediately preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations are
available, the fair market
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value on the date in question of a share of such stock as determined
by a majority of the Disinterested Directors.
(E) Powers of the Board of Directors. A majority of the directors shall
have the power and duty to determine for the purposes of this Article XIII, on
the basis of information known to them after reasonable inquiry, (1) whether a
person is an Interested Stockholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Company or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $100 million or more. A
majority of the directors shall have the further power to interpret all of the
terms and provisions of this Article XIII.
(F) No Effect on Fiduciary Obligations of Interested Stockholders. Nothing
contained in this Article XIII shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
(G) Amendment, Repeal, etc. Notwithstanding any other provisions of this
Certificate of Incorporation or the by-laws (and notwithstanding the fact that a
lesser percentage may be specified by law, this Certificate of Incorporation or
the by-laws) the affirmative vote of the holders of 80% or more of the
outstanding Voting Stock, voting together as a single class, shall be required
to amend or repeal, or adopt any provisions inconsistent with this Article XIII.
XIV.
A director of the Company shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Law as the same exists or may
hereafter be amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Company shall not adversely affect any right or protection of a director
of the Company existing at the time of such repeal or modification.
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XV.
The Company 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 this Certificate of Incorporation or statute, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
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EXHIBIT 3.2
BY-LAWS OF TEXACO INC.
A Delaware Corporation
ARTICLE I.
Stockholders.
SECTION 1. Annual Meeting. The annual meeting of stockholders shall be held
on the fourth Tuesday in April of each year at 2:00 P.M., or at such time of day
or on such other date in each calendar year as may be fixed by the Board of
Directors, for the election of directors and the transaction of any other
business as may properly come before the meeting.
SECTION 2. Stockholder Action; Special Meetings. Any action required or
permitted to be taken by the stockholders of the Company must be effected at a
duly called annual or special meeting of such holders and may not be effected by
any consent in writing by such holders. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of stockholders of the Company may be called only by the Board of
Directors pursuant to a resolution approved by a majority of the entire Board of
Directors.
SECTION 3. Notice of Meetings. Notice of each meeting of stockholders,
annual or special, stating the time and place, and, if a special meeting, the
purpose or purposes in general terms, shall be mailed no earlier than 60 days
and no later than 10 days prior to the meeting to each stockholder at the
stockholder's address as the same appears on the books of the Company.
SECTION 4. Place. Meetings of the stockholders shall be held at such place
or places as the Board of Directors may direct, the place to be specified in the
notice.
Section 5. Quorum. At any meeting of stockholders, the holders of a
majority of the voting shares issued and outstanding, being present in person or
represented by proxy, shall be a quorum for all purposes, except where otherwise
provided by statute.
SECTION 6. Adjournments. Any annual or special meeting of stockholders duly
and regularly called in accordance with these by-laws may adjourn one or more
times and no further notice of such adjourned meeting or meetings shall be
necessary. If at any annual or special meeting of stockholders a quorum shall
fail to attend in person or by proxy, a majority in interest of the stockholders
attending in person or by proxy may adjourn the meeting to another time, or to
another time and place, and there may be successive adjournments for like cause
and in like manner without further notice until a quorum shall attend. Any
business may be transacted at any such adjourned meeting or meetings which might
have been transacted at the meeting as originally called.
SECTION 7. Organization. The Chairman of the Board, or, in his absence, the
Vice Chairman, or, in their absence, the President, or, in their absence, one of
the Executive Vice Presidents, or, in their absence, one of the Senior Vice
Presidents, or, in their absence, a Vice President appointed by the
stockholders, shall call meetings of the stockholders to order and shall act as
chairman thereof. The Secretary of the Company, if present, shall act as
secretary of all meetings of the stockholders; and, in his absence, the
presiding officer may appoint a secretary.
SECTION 8. Voting. At each meeting of the stockholders, every stockholder
of record (at the closing of the transfer books if closed) shall be entitled to
vote in person or by proxy appointed by an instrument in writing subscribed by
such stockholder or by his duly authorized attorney and delivered to and filed
with the Secretary at the meeting; and each stockholder shall have one vote for
each share of stock standing in his name. Voting for directors, and upon any
question at any meeting, shall be by ballot, if demanded by any stockholder.
SECTION 9. Stockholder Proposals. Stockholders may present proper business
for stockholder action at an annual meeting by giving timely notice in writing
to the Secretary of their intention to bring such business before the meeting.
To be timely, a stockholder's notice must be delivered to, or mailed and
received at, the office of the Company in Harrison, New York, addressed to the
attention of the Secretary, not less than 60 days nor more than 90 days prior to
the first anniversary of the preceding year's annual meeting of stockholders;
provided, however, that if the date of the annual meeting is advanced more than
30 days prior to or delayed by more than 60 days after such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier than the
90th day prior to such annual meeting and not later than the close of business
on the later of the 60th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made. The stockholder's notice shall set forth (a) the name and address of
the stockholder proposing such business, (b) a brief description of the business
desired to be brought before the meeting and any material interest in such
business of such stockholder, and (c) the number of shares of the Company which
are beneficially owned by the stockholder. The chairman of the meeting may
refuse to permit any business to be brought before an annual meeting by a
stockholder without compliance with the procedure set forth in this Section 9.
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For purposes of this section, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the Company
with the Securities and Exchange Commission.
Notwithstanding the foregoing provisions of this by-law, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and the rules and regulations
thereunder with respect to matters set forth in this by-law. Nothing in this
by-law shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the company's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
SECTION 10. List of Stockholders. The Secretary shall keep records from
which a list of stockholders can be compiled, and shall furnish such list upon
order of the Board of Directors.
ARTICLE II.
The Board of Directors.
SECTION 1. Number, Election and Terms. Except as otherwise fixed by or
pursuant to the provisions of Article IV of the Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors under specified circumstances, the number of the directors
of the Company shall be fixed from time to time by the Board of Directors but
shall not be less than three. The directors, other than those who may be elected
by the holders of any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, shall be classified, with
respect to the time for which they severally hold office, into three classes, as
nearly equal in number as possible, as determined by the Board of Directors, one
class to be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1985, another class to be originally elected for a
term expiring at the annual meeting of stockholders to be held in 1986, and
another class to be originally elected for a term expiring at the annual meeting
of stockholders to be held in 1987, with each class to hold office until its
successor is elected and qualified. At each annual meeting of the stockholders
of the Company, the successors of the class of directors whose term expires at
that meeting shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of their
election.
SECTION 2. Newly Created Directorships and Vacancies. Except as otherwise
provided for or fixed by or pursuant to the provisions of Article IV of the
Certificate of Incorporation relating to the rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect directors under specified circumstances, newly created
directorships resulting from any increases in the number of directors or any
vacancies on the Board of Directors resulting from death, resignation or
disqualification, or other cause shall be filled by the affirmative vote of a
majority of the remaining directors then in office, even though less than a
quorum of the Board of Directors. Any director so elected shall stand for
election (for the balance of his term) at the next annual meeting of
stockholders, unless his term expires at such Annual Meeting. Any vacancy on the
Board of Directors resulting from removal by stockholder vote shall be filled
only by the vote of a majority of the voting power of all shares of the Company
entitled to vote generally in the election of Directors, voting together as a
single class. The affirmative vote of the holders of at least a majority of the
then outstanding shares of capital stock of the Company voting generally in the
election of Directors, voting together as a single class, shall be required to
repeal the foregoing provisions.
SECTION 3. Removal. Subject to the rights of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect Directors under specified circumstances, any director may be removed from
office, with or without cause, only by the affirmative vote of the holders of
662/3% of the combined voting power of the then outstanding shares of stock
entitled to vote generally in the election of Directors, voting together as a
single class.
SECTION 4. Nominations. Subject to the rights of holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation, nominations for the election of Directors may be made by the
Board of Directors or a proxy committee appointed by the Board of Directors or
by any stockholder entitled to vote in the election of Directors generally.
However, any stockholder entitled to vote in the election of Directors generally
may nominate one or more persons for election as Directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the Secretary of the Company not later than (i) with
respect to an election to be held at an annual meeting of stockholders, 90 days
in advance of such meeting, and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of Directors, the close of
business on the seventh day following the date on which notice of such meeting
is first given to stockholders. Each such notice shall set forth: (a) the name
and address of the stockholder who intends to make the nomination and of the
person or persons to be nominated; (b) a representation that the stockholder is
a holder of record of stock of the Company entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such
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other information regarding each nominee proposed by such stockholder as would
be required to be included in a proxy statement filed pursuant to the proxy
rules of the Securities and Exchange Commission, had the nominee been nominated,
or intended to be nominated, by the Board of Directors; and (e) the consent of
each nominee to serve as a director of the Company if so elected. The chairman
of the meeting may refuse to acknowledge the nomination of any person not made
in compliance with the foregoing procedure.
SECTION 5. Organization Meeting of the Board. At the last regular meeting
of the Board of Directors prior to each annual meeting of stockholders, the
Board of Directors shall establish its organization, elect and appoint officers
and appoint committee members. Such action may also be taken at another place
and time fixed by written consent of the Directors.
SECTION 6. Regular Meetings. Regular meetings of the Board are fixed and
may be held without notice at the office of the Company in Harrison, New York on
the fourth Friday in each month at 9:00 A.M., or at such other time and place,
either within or without the State of Delaware, as the Board may provide by
resolution, without other notice than such resolution. If less than a quorum is
present at any meeting time and place, those present may adjourn from time to
time until a quorum shall be present, but if there shall be no quorum prior to
another regular meeting time, then such meetings of less than a quorum need not
be recorded.
SECTION 7. Special Meetings. Special meetings of the Board shall be held
whenever called by the Chairman of the Board, or, in his absence, by the Vice
Chairman of the Board, or, in their absence, by the President, or by one-third
of the Directors then in office. The person or persons authorized to call
special meetings of the Board may fix any place, either within or without the
State of Delaware, as the place for holding any special meeting. Unless
otherwise specified in the notice thereof, any business may be transacted at a
special meeting.
SECTION 8. Notice of Special Meetings. The Secretary shall mail to each
director notice of any special meeting at least two days before the meeting, or
shall telegraph or telephone such notice not later than the day before the
meeting. When all Directors are present, any business may be transacted without
any previous notice. Any director may waive notice of any meeting.
SECTION 9. Quorum. A majority of the total number of Directors, or half of
the total number when the number of Directors then in office is even, shall
constitute a quorum for the transaction of business, and a majority of those
present at the time and place of any regular or special meeting, although less
than a quorum, may adjourn the same from time to time, as provided in these
by-laws.
SECTION 10. Chairman. At all meetings of the Board, the Chairman of the
Board, or, in his absence, the Vice Chairman of the Board, or, in their absence,
the President, or, in their absence, a chairman chosen by the Directors present,
shall preside.
SECTION 11. Action without Meeting. A statement in writing, signed by all
members of the Board of Directors or the Executive Committee, shall be deemed to
be action by the Board or Committee, as the case may be, to the effect therein
expressed, and it shall be the duty of the Secretary to record such statement in
the minute books of the Company under its proper date.
ARTICLE III.
Executive Committee and Other Committees.
SECTION 1. Executive Committee. The Board of Directors shall appoint an
Executive Committee of seven or more members to serve during the pleasure of the
Board to consist of the Chairman of the Executive Committee, the Chairman of the
Board, the Vice Chairman of the Board, the President, and such additional
Directors as the Board may from time to time designate.
SECTION 2. The Chairman of the Executive Committee. The Chairman of the
Executive Committee shall be designated by the Board of Directors and shall be a
member of the Board and of the Executive Committee. He shall preside at meetings
of the Executive Committee, and shall do and perform such other things as may
from time to time by assigned to him by the Board of Directors.
SECTION 3. Vacancies. Vacancies in the Executive Committee shall be filled
by the Board.
SECTION 4. Executive Committee to Report. All action by the Executive
Committee shall be reported promptly to the Board and such action shall be
subject to review by the Board, provided that no rights of third parties shall
be affected by such review.
SECTION 5. Procedure. The Executive Committee, by a vote of a majority of
all of its members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for the transaction of
business, and shall prescribe its own rules of procedure, no change in which
shall be made save by a majority vote of all of its members.
SECTION 6. Powers. During the intervals between the meetings of the Board,
the Executive Committee shall possess and may exercise all the powers of the
Board in the management and direction of the business and affairs of the
Company, except those which by applicable statute are reserved to the Board of
Directors.
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SECTION 7. Other Committees. From time to time the Board may appoint other
committees, and they shall have such powers as shall be specified in the
resolution of appointment.
ARTICLE IV.
Officers.
SECTION 1. Number. The Board of Directors shall elect the executive
officers of the Company which may include a Chairman of the Board, one or more
Vice Chairmen of the Board, a President, one or more Vice Presidents (one or
more of whom may be designated as Executive Vice Presidents or as Senior Vice
Presidents or by other designations), a General Counsel, a Secretary, a
Treasurer, a Comptroller, and a General Tax Counsel. A person may at the same
time hold, exercise and perform the powers and duties of more than one executive
officer position. In addition to the executive officers, the Board may appoint
one or more Assistant Secretaries, Assistant Treasurers and Assistant
Comptrollers and such other officers or agents as the Board may from time to
time deem necessary or desirable. All officers and agents shall perform the
duties and exercise the powers usually incident to the offices or positions held
by them, those prescribed by these by-laws, and those assigned to them from time
to time by the Board or by the Chief Executive Officer.
SECTION 2. The Chairman of the Board. The Chairman of the Board shall be a
member of the Board of Directors and of the Executive Committee. He shall
preside at meetings of the stockholders and of the Directors, and shall keep in
close touch with the administration of the affairs of the Company, shall advise
and counsel with the Vice Chairman of the Board and the President, and with
other executives of the Company and shall do and perform such other duties as
may from time to time be assigned to him by the Board of Directors or by the
Executive Committee.
SECTION 3. The Vice Chairman of the Board. The Vice Chairman of the Board
shall be a member of the Board of Directors and the Executive Committee. He
shall keep in close touch with the administration of the affairs of the Company,
shall advise and counsel with the Chairman of the Board and the President, and
with other executives of the Company, and shall do and perform such other duties
as may from time to time be assigned to him by the Board of Directors or the
Executive Committee.
SECTION 4. The President. The President shall be a member of the Board of
Directors and of the Executive Committee. He shall keep in close touch with the
administration of the affairs of the Company, shall advise and counsel with the
Chairman of the Board and the Vice Chairman of the Board and with other
executives of the Company, and shall do and perform such other duties as may
from time to time be assigned to him by the Board of Directors or the Executive
Committee. In the absence of the Chairman of the Board, he shall preside at
meetings of the stockholders and of the Directors.
SECTION 5. The Chief Executive Officer. Either the Chairman of the Board,
or the President, as the Board of Directors may designate, shall be the Chief
Executive Officer of the Company. The officer so designated shall have, in
addition to the powers and duties applicable to the office set forth in either
Section 2 or 4 of this Article IV, general active supervision over the business
and affairs of the Company and over its several officers, agents, and employees,
subject, however, to the direction and control of the Board or the Executive
Committee. The Chief Executive Officer shall see that all orders and resolutions
of the Board or the Executive Committee are carried into effect, and, in
general, shall perform all duties incident to the position of Chief Executive
Officer and such other duties as may from time to time be assigned by the Board
or the Executive Committee.
SECTION 6. The Executive Vice Presidents. The Executive Vice Presidents
shall keep in touch with the administration of the affairs of the Company, shall
advise and counsel with the Chairman of the Board, the Vice Chairman of the
Board and with the President and with other executives of the Company, and shall
do and perform such other duties as from time to time may be assigned to them by
the Board of Directors, the Executive Committee, the Chairman of the Board, the
Vice Chairman of the Board, or the President. In the absence of the Chairman of
the Board, the Vice Chairman of the Board and the President, the senior
Executive Vice President shall preside at meetings of the stockholders.
SECTION 7. The Senior Vice Presidents. Each Senior Vice President shall
have such powers as may be conferred upon him by the Board of Directors, and
shall perform such duties as from time to time may be assigned to him by the
Board of Directors, the Executive Committee, the Chairman of the Board, the Vice
Chairman of the Board, or the President.
SECTION 8. The Vice Presidents. Each Vice President shall have such powers
as may be conferred upon him by the Board of Directors, and shall perform such
duties as from time to time may be assigned to him by the Board of Directors,
the Executive Committee, the Chairman of the Board, the Vice Chairman of the
Board, or the President.
SECTION 9. The General Counsel. The General Counsel shall have charge of
all the legal affairs of the Company and shall exercise supervision over its
contract relations.
SECTION 10. The Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and the Board of Directors in books provided for
the purpose. He shall attend to the giving and serving of all notices for the
Company. He shall sign with the Chairman of the Board, the Vice Chairman of the
Board, the President, and Executive Vice
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<PAGE>
President, a Senior Vice President, or a Vice President, such contracts as may
require his signature, and shall in proper cases affix the seal of the Company
thereto. He shall have charge of the certificate books and such other books and
papers as the Board of Directors may direct. He shall sign with the Chairman of
the Board, the President, or a Vice President certificates of stock, and he
shall in general perform all the duties incident to the Office of Secretary,
subject to the control of the Board, and shall perform such other duties as from
time to time may be assigned to him by the Board of Directors, the Executive
Committee, the Chairman of the Board, the Vice Chairman of the Board, or the
President. Any Assistant Secretary may, in his own name, perform any duty of the
Secretary, when so requested by the Secretary or in the absence of that officer,
and may perform such duties as may be prescribed by the Board. In the absence of
the Secretary and of all Assistant Secretaries, minutes of any meetings may be
kept by a Secretary pro tem, appointed for that purpose by the presiding
officer.
SECTION 11. The Treasurer. The Treasurer shall have charge and custody of
and be responsible for all the funds and securities of the Company, and may
invest the same in any securities as may be permitted by law; designate
depositories in which all monies and other valuables to the credit of the
Company may be deposited; render to the Board, or any committee designated by
the Board, whenever the Board or such committee may require, an account of all
transactions as Treasurer; and in general perform all the duties of the office
of Treasurer and such other duties as from time to time may be assigned by the
Chairman of the Board, the Vice Chairman of the Board, the President, the
officer of the Company who may be designated Chief Financial Officer, and the
Board of Directors. In case one or more Assistant Treasurers be appointed, the
Treasurer may delegate to them the authority to perform such duties as the
Treasurer may determine.
SECTION 12. The Comptroller. The Comptroller shall be the principal
accounting officer of the corporation; shall have charge of the Company's books
of accounts, records and auditing, shall ensure that the necessary internal
controls exist within the Company to provide reasonable assurance that the
Company's assets are safeguarded and that financial records are maintained and
publicly disclosed in accordance with generally accepted accounting principles;
and in general perform all the duties incident to the office of Comptroller and
such other duties as from time to time may be assigned by the Chairman of the
Board, the Vice Chairman of the Board, the President, the officer of the Company
who may be designated Chief Financial Officer, and the Board of Directors. In
case one or more Assistant Comptrollers be appointed, the Comptroller may
delegate to them such duties as the Comptroller may determine.
SECTION 13. The General Tax Counsel. The General Tax Counsel shall have
charge of all the tax affairs of the Company.
SECTION 14. Tenure of Officers: Removal. All officers elected or appointed
by the Board shall hold office until their successor is elected or appointed and
qualified, or until their earlier resignation or removal. All such officers
shall be subject to removal, with or without cause, at any time by the
affirmative vote of a majority of the whole Board.
ARTICLE V.
Indemnification.
SECTION 1. Right to Indemnification. The Company shall indemnify, defend
and hold harmless any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, investigative or other, including
appeals, by reason of the fact that he is or was a director, officer or employee
of the Company, or is or was serving at the request of the Company as a
director, officer or employee of any corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director, officer or employee or in any other capacity while
serving as a director, officer or employee, to the fullest extent authorized by
the Delaware General Corporation Law, as the same exists or may hereafter be
amended, (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said Law permitted the Company to provide prior to such amendment) against all
expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith;
provided, however, that except as provided in Section 2 hereof with respect to
proceedings seeking to enforce rights to indemnification, the Company shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if the proceeding (or
part thereof) was authorized by the Board of Directors of the Company.
The right to indemnification conferred in this Article shall be a contract
right and shall include the right to be paid by the Company expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, the payment of such expenses in advance of the final disposition of
such proceeding shall be made only upon delivery to the Company of an
undertaking by or on behalf of such director, officer or employee to repay all
amounts so advanced if it should be determined ultimately that such director or
officer or employee is not entitled to be indemnified under this Article or
otherwise.
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"Employee." as used herein, includes both an active employee in the
Company's service as well as a retired employee who is or has been a party to a
written agreement under which he might be, or might have been obligated to
render services to the Company.
SECTION 2. Right of Claimant to Bring Suit. If a claim under Section 1 is
not paid in full by the Company within sixty days or, in cases of advances of
expenses, twenty days, after a written claim has been received by the Company,
the claimant may at any time thereafter bring suit against the Company to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking has been tendered to the
Company) that the claimant has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the Company to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Company. Neither the failure of the Company (including
its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Company (including its Board
of Directors, independent legal counsel or its stockholders) that the claimant
had not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant had not met the applicable standard
of conduct. The Company shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Article that the procedures and
presumptions of this Article are not valid, binding and enforceable and shall
stipulate in any such proceeding that the Company is bound by all the provisions
of this Article.
SECTION 3. Non-Exclusivity and Survival. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article (a) shall apply to acts or omissions
antedating the adoption of this by-law, (b) shall be severable, (c) shall not be
exclusive of other rights to which any director, officer or employee may now or
hereafter be entitled, (d) shall continue as to a person who has ceased to be
such director, officer or employee and (e) shall inure to the benefit of the
heirs, executors and administrators of such a person.
ARTICLE VI.
Capital Stock.
SECTION 1. Form and Execution of Certificates. The certificates of shares
of the capital stock of the Company shall be in such form as shall be approved
by the Board. The certificates shall be signed by the Chairman of the Board, the
President, or a Vice President, and the Secretary or an Assistant Secretary.
Section 2. Certificates to be Entered. Certificates shall be consecutively
numbered, and the names of the owners, the number of shares and the date of
issue, shall be entered in the books of the Company.
SECTION 3. Old Certificates to be Canceled. Except in the case of lost or
destroyed certificates, and in that case only upon performance of such
conditions as the Board may prescribe, no new certificate shall be issued in
lieu of a former certificate until such former certificate shall have been
surrendered and canceled.
Section 4. Transfer of Shares. Shares shall be transferred only on the
books of the Company by a holder thereof in person or by his attorney appointed
in writing, upon the surrender and cancellation of certificates for a like
number of shares.
SECTION 5. Regulations. The Board may make such rules and regulations as it
may deem expedient concerning the issue, transfer and registration of
certificates of stock of the Company.
Section 6. Registrar. The Board, the Chairman of the Board, the President,
and the Treasurer shall each have the authority to appoint a registrar of
transfers and may require all certificates to bear the signature of such
registrar.
SECTION 7. Closing of Transfer Books. If deemed expedient by the Board, the
stock books and transfer books may be closed for the meetings of the
stockholders, or for other purposes, during such periods as from time to time
may be fixed by the Board, and during such periods no stock shall be
transferable on said books.
SECTION 8. Dates of Record. If deemed expedient by the Board, the Directors
may fix in advance, a date, not exceeding 60 days preceding the date of any
meeting of stockholders or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, as a record date for the
determination of the stockholders entitled to notice of, and to vote at, any
such meeting or entitled to receive payment of any such dividend, or to any such
allotment of rights, or to exercise the rights in respect of any such change,
conversion or exchange of capital stock, and in such case only such stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
such notice of, and to vote at, such meeting, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any stock on the books of the
Company after any such record date fixed as aforesaid.
SECTION 9. Rights to Purchase Securities. The Company shall not, without
either the prior approval of a majority of the total number of shares then
issued and outstanding and entitled to vote or the receipt by the Company of a
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favorable opinion issued by a nationally recognized investment banking firm
designated by the Committee of Equity Security Holders of Texaco Inc. appointed
in the Company's jointly administered chapter 11 case in the United States
Bankruptcy Court for the Southern District of New York or its last chairman (or
his designee) to the effect that the proposed issuance is fair from a finance
point of view to the stockholders of the Company issue to its stockholders
generally (i) any warrant or other right to purchase any security of the
Company, any successor thereto or any other person or entity or (ii) any
security of the Company containing any such right to purchase, which warrant,
right or security (a) is exercisable, exchangeable or convertible, based or
conditioned in whole or in part on (I) a change of control of the Company or
(II) the owning or holding of any number or percentage of outstanding shares or
voting power or any offer to acquire any number of shares or percentage of
voting power by any entity, individual or group of entities and/or individuals
or (b) discriminates among holders of the same class of securities (or the class
of securities for which such warrant or right is exercisable or exchangeable) of
the Company or any successor thereto. The affirmative vote of the holders of at
least a majority of the then outstanding shares of capital stock of the Company
voting generally in the election of Directors, voting together as a single
class, shall be required to repeal the foregoing provisions.
ARTICLE VII
Fair Price.
A. Vote Required for Certain Business Combinations.
1. Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or the Certificate of Incorporation, and
except as otherwise expressly provided in Section B of this Article VII:
a. any merger or consolidation of the Company or any Subsidiary
(as hereinafter defined) with (i) any Interested Stockholder (as
hereinafter defined) or (ii) any other person (whether or not itself an
Interested Stockholder) which is, or after such merger or consolidation
would be, an Affiliate (as hereinafter defined) of an Interested
Stockholder; or
b. any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Interested Stockholder or any Affiliate of any Interested
Stockholder of any assets of the Company or any Subsidiary having an
aggregate Fair Market Value of $100 million or more; or
c. the issuance or transfer by the Company or any Subsidiary (in
one transaction or a series of transactions) of any securities of the
Company or any Subsidiary to any Interested Stockholder or any
Affiliate of any Interested Stockholder in exchange for cash,
securities or other property (or a combination thereof) having an
aggregate Fair Market Value of $100 million or more; or
d. the adoption of any plan or proposal for the liquidation or
dissolution of the Company proposed by or on behalf of an Interested
Stockholder or any Affiliate of any Interested Stockholder; or
e. any reclassification of securities (including any reverse stock
split), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise involving an
Interested Stockholder) which has the effect, directly or indirectly,
of increasing the proportionate share of the outstanding shares of any
class of equity or convertible securities of the Company or any
Subsidiary which is directly or indirectly owned by any Interested
Stockholder or any Affiliate of any Interested Stockholder;
shall require the affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of capital stock of the Company entitled to
vote generally in the election of Directors (the "Voting Stock"), voting
together as a single class (it being understood that for purposes of this
Article VII, each share of the Voting Stock shall have the number of votes
granted to it pursuant to Article IV of the Certificate of Incorporation). Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
2. Definition of "Business Combination". The term "Business
Combination" as used in this Article VII shall mean any transaction which
is referred to in any one or more of clauses (a) through (e) of paragraph 1
of this Section A. B. When Higher Vote is Not Required. The provisions of
Section A of this Article VII shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote as is required by law and any provision of the Certificate of
Incorporation, if all of the conditions specified in either of the following
paragraphs 1 and 2 are met:
1. Approval by Disinterested Directors. The Business Combination shall
have been approved by a majority of the Disinterested Directors (as
hereinafter defined).
2. Price and Procedure Requirements. All of the following conditions
shall have been met:
a. The aggregate amount of the cash and the Fair Market Value (as
hereinafter defined) as of the date of the consummation of the Business
Combination of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at
least equal to the higher of the following:
* 7 *
<PAGE>
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of Common
Stock acquired by it (a) within the two-year period immediately
prior to the first publication announcement of the proposal of the
Business Combination (the "Announcement Date") or (b) in the
transaction in which it became an Interested Stockholder,
whichever is higher; and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (such latter date is
referred to in this Article VII as the "Determination Date"),
whichever is higher.
b. The aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
consideration other than cash to be received per share by holders of
shares of any other class of outstanding Voting Stock shall be at
least equal to the highest of the following (it being intended that
the requirements of this paragraph 2b shall be required to be met with
respect to every class of outstanding Voting Stock, whether or not the
Interested Stockholder has previously acquired any shares of a
particular class of Voting Stock):
(i) (if applicable) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Interested Stockholder for any shares of such
class of Voting Stock acquired by it (a) within the two-year
period immediately prior to the Announcement Date or (b) in the
transaction in which it became an Interested Stockholder,
whichever is higher;
(ii) (if applicable) the highest preferential amount per share
to which the holders of shares of such class of Voting Stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company; and
(iii) the Fair Market Value per share of such class of Voting
Stock on the Announcement Date or on the Determination Date,
whichever is higher.
c. The consideration to be received by holders of a particular
class of outstanding Voting Stock (including Common Stock) shall be in
cash or in the same form as the Interested Stockholder has previously
paid for shares of any class of Voting Stock. If the Interested
Stockholder has paid for shares of any class of Voting Stock with
varying forms of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form used to acquire
the largest number of shares of such Class of Voting Stock previously
acquired by it. The price determined in accordance with paragraphs 2a
and 2b of this Section B shall be subject to appropriate adjustment in
the event of any stock dividend, stock split, combination of shares or
similar event.
d. After such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business Combination:
(i) except as approved by a majority of the Disinterested Directors,
there shall have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not cumulative) on
the outstanding Preferred Stock; (ii) there shall have been (a) no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any subdivision of the Common Stock),
except as approved by a majority of the Disinterested Directors, and
(b) an increase in such annual rate of dividends as necessary to
reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction which has
the effect of reducing the number of outstanding shares of the Common
Stock unless the failure so to increase such annual rate is approved by
a majority of the Disinterested Directors; and (iii) such Interested
Stockholder shall have not become the beneficial owner of any
additional shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming an Interested
Stockholder.
e. After such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the Company, whether in anticipation of or in connection
with such Business Combination or otherwise.
f. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public stockholders of the Company at
least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions).
C. Vote Required for Certain Stock Repurchases. In addition to any other
requirement of the Certificate of Incorporation, the affirmative vote of the
holders of at least 50% of the Voting Stock (other than Voting Stock
beneficially owned by a Selling Stockholder (as hereinafter defined)), shall be
required before the Company purchases any outstanding shares of Common Stock at
a price above the Market Price (as hereinafter defined) from a person actually
known by the Company to be a Selling Stockholder, unless the purchase is made by
the Company (a) on the same terms and as a result of an offer made generally to
all holders of Common Stock or (b) pursuant to statutory appraisal rights.
* 8 *
<PAGE>
D. Certain Definitions. For the purpose of this Article VII:
1. A "person" shall mean any individual, firm, corporation or other
entity.
2. "Interested Stockholder" shall mean any person (other than the
Company or any Subsidiary) who or which:
a. is the beneficial owner, directly or indirectly, of more than
20% of the voting power of the outstanding Voting Stock; or
b. is an Affiliate of the Company and at any time within the
two-year period immediately prior to the date in question was the
beneficial owner, directly or indirectly, of 20% or more of the voting
power of the then outstanding Voting Stock; or
c. is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period
immediately prior to the date in question beneficially owned by any
Interested Stockholder, if such assignment or succession shall have
occurred in the course of a transaction or series of transactions not
involving a public offering within the meaning of the Securities Act
of 1933.
3. A person shall be a "beneficial owner" of any Voting Stock:
a. which such person or any of its Affiliates or Associates (as
hereinafter defined) beneficially owns directly or indirectly; or
b. which such person or any of its Affiliates or Associates has
(i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding; or
c. which are beneficially owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any shares of
Voting Stock.
4. For the purposes of determining whether a person is an Interested
Stockholder pursuant to paragraph 2 of this Section D, the number of shares
of Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph 3 of this Section D but shall not include
any other shares which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
5. "Affiliate" or "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1, 1988.
6. "Subsidiary" means any corporation of which a majority of any class
of equity security is owned, directly or indirectly, by the Company;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in paragraph 2 of this Section D, the term
"Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Company.
7. "Disinterested Director" means any member of the Board of Directors
who is unaffiliated with the Interested Stockholder and was a member of the
Board of Directors prior to the time that the Interested Stockholder became
an Interested Stockholder, and any successor of a Disinterested Director
who is unaffiliated with the Interested Stockholder and is recommended to
succeed a Disinterested Director by a majority of Disinterested Directors
then on the Board of Directors.
8. "Fair Market Value" means (a) in the case of the stock, the highest
closing sale price during the 30-day period immediately preceding the date
in question of a share of such stock on the Composite Tape for the New York
Stock Exchange-Listed Stocks, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock is listed,
or, if such stock is not listed on any such exchange, the highest closing
bid quotation with respect to a share of such stock during the 30-day
period preceding the date in question on the National Association of
Securities Dealers, Inc. Automated Quotations System or any system then in
use, or if no such quotations are available, the fair market value on the
date in question of a share of such stock as determined by the Board of
Directors in good faith; and (b) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined by a majority of the Disinterested Directors.
9. "Selling Stockholder" means any person who or which is the
beneficial owner of in the aggregate more than 1% of the outstanding shares
of Common Stock and who or which has purchased or agreed to purchase any of
such shares within the most recent two-year period and who sells or
proposes to sell Common Stock in a transaction requiring the affirmative
vote provided for in Section C of this Article VII.
10. "Market Price" means the highest sale price on or during the
period of five trading days immediately preceding the date in question of a
share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stock, or if such stock is not quoted on the Composite Tape
on the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Securities Exchange Act of 1934 on which such stock is listed,
or, if such stock is not listed on any such
* 9 *
<PAGE>
exchange, the highest closing bid quotation with respect to a share of
stock on or during the period of five trading days immediately preceding
the date in question on the National Association of Securities Dealers,
Inc. Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question of
a share of such stock as determined by a majority of the Disinterested
Directors.
E. Powers of the Board of Directors. A majority of the Directors shall have
the power and duty to determine for the purposes of this Article VII, on the
basis of information known to them after reasonable inquiry, (1) whether a
person is an Interested Stockholder, (2) the number of shares of Voting Stock
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the issuance
or transfer of securities by the Company or any Subsidiary in any Business
Combination has, an aggregate Fair Market Value of $100 million or more. A
majority of the Directors shall have the further power to interpret all of the
terms and provisions of this Article VII.
F. No Effect on Fiduciary Obligations of Interested Stockholders. Nothing
contained in this Article VII shall be construed to relieve any Interested
Stockholder from any fiduciary obligation imposed by law.
G. Amendment, Repeal, etc. Notwithstanding any other provisions of the
Certificate of Incorporation or these by-laws (and notwithstanding the fact that
a lesser percentage may be specified by law, the Certificate of Incorporation or
these by-laws) the affirmative vote of the holders of at least a majority of
then outstanding shares of capital stock of the Company voting generally in the
election of Directors, voting together as a single class shall be required to
repeal the foregoing provisions of this Article VII.
ARTICLE VIII.
Seal.
The seal of the Company shall be in circular form containing the name of
the Company around the margin, with a five pointed star in the center embodying
a capital "T".
ARTICLE IX.
By-Law Amendments.
Subject to the provisions of the Certificate of Incorporation, these
by-laws may be altered, amended or repealed at any regular meeting of the
stockholders (or at any special meeting thereof duly called for that purpose) by
a majority vote of the shares represented and entitled to vote at such meeting;
provided that in the notice of such special meeting notice of such purpose shall
be given. Subject to the laws of the State of Delaware, the Certificate of
Incorporation and these by-laws, the Board of Directors may by majority vote of
those present at any meeting at which a quorum is present amend these by-laws,
or enact such other by-laws as in their judgment may be advisable for the
regulation of the conduct of the affairs of the Company.
* 10 *
EXHIBIT 11
<TABLE>
<CAPTION>
TEXACO INC.
COMPUTATION OF CONSOLIDATED EARNINGS PER SHARE OF COMMON STOCK
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND 1998
--------------------------------------------------------------
(Millions of dollars, except as noted)
(Unaudited)
----------------------
For the three months
ended March 31,
-----------------------
1999 1998
---- ----
<S> <C> <C>
Basic Earnings Per Common Share:
- --------------------------------
Income before cumulative effect of accounting change
less preferred stock dividend requirements $ 186 $ 245
======= =======
Average shares outstanding (thousands) 526,230 531,914
======= =======
Basic income before cumulative effect of accounting change
per common share (dollars) $ 0.35 $ 0.46
======= =======
Diluted Earnings Per Common Share:
- ----------------------------------
Income before cumulative effect of accounting change
less preferred stock dividend requirements $ 186 $ 245
Adjustments, mainly ESOP preferred stock dividends in 1998 -- 9
------- -------
Income before cumulative effect of accounting change
for diluted net income per share $ 186 $ 254
======= =======
Average shares outstanding (thousands) 526,230 531,914
Adjustments, mainly ESOP preferred stock in 1998 662 19,507
------- -------
Shares outstanding for diluted computation (thousands) 526,892 551,421
======= =======
Diluted income before cumulative effect of accounting change
per common share (dollars) $ 0.35 $ 0.46
======= =======
</TABLE>
EXHIBIT 12
<TABLE>
<CAPTION>
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
OF TEXACO ON A TOTAL ENTERPRISE BASIS (UNAUDITED)
FOR THE THREE MONTHS ENDED MARCH 31, 1999 AND
FOR EACH OF THE FIVE YEARS ENDED DECEMBER 31, 1998
--------------------------------------------------
(Millions of dollars)
For the Three
Months Ended Years Ended December 31,
March 31, 1999 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Income from continuing operations, before provision or
benefit for income taxes and cumulative effect of
accounting changes effective 1-1-98 and 1-1-95.......... $ 227 $ 892 $3,514 $3,450 $1,201 $1,409
Dividends from less than 50% owned companies
more or (less) than equity in net income................ 15 -- (11) (4) 1 (1)
Minority interest in net income............................ 19 56 68 72 54 44
Previously capitalized interest charged to
income during the period................................ 4 22 25 27 33 29
----- ------ ------ ------ ------ ------
Total earnings..................................... 265 970 3,596 3,545 1,289 1,481
----- ------ ------ ------ ------ ------
Fixed charges Items charged to income:
Interest charges...................................... 142 664 528 551 614 594
Interest factor attributable to operating
lease rentals.................................... 22 120 112 129 110 118
Preferred stock dividends of subsidiaries
guaranteed by Texaco Inc......................... 8 33 33 35 36 31
----- ------ ------ ------ ------ ------
Total items charged to income...................... 172 817 673 715 760 743
Interest capitalized.................................... 8 26 27 16 28 21
Interest on ESOP debt guaranteed by Texaco Inc.......... -- 3 7 10 14 14
----- ------ ------ ------ ------ ------
Total fixed charges................................ 180 846 707 741 802 778
----- ------ ------ ------ ------ ------
Earnings available for payment of fixed charges............ $ 437 $1,787 $4,269 $4,260 $2,049 $2,224
(Total earnings + Total items charged to income) ===== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges of Texaco
on a total enterprise basis............................. 2.43 2.11 6.04 5.75 2.55 2.86
===== ====== ====== ====== ====== ======
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
TEXACO INC.'S 1999 QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED
MARCH 31, 1999 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> JAN-1-1999
<PERIOD-END> MAR-31-1999
<CASH> 263
<SECURITIES> 85
<RECEIVABLES> 3,510
<ALLOWANCES> 27
<INVENTORY> 1,296
<CURRENT-ASSETS> 5,464
<PP&E> 35,861
<DEPRECIATION> 21,048
<TOTAL-ASSETS> 28,079
<CURRENT-LIABILITIES> 4,493
<BONDS> 6,784
0
625
<COMMON> 1,753
<OTHER-SE> 9,398
<TOTAL-LIABILITY-AND-EQUITY> 28,079
<SALES> 6,914
<TOTAL-REVENUES> 7,190
<CGS> 5,450
<TOTAL-COSTS> 6,009
<OTHER-EXPENSES> 876
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 121
<INCOME-PRETAX> 184
<INCOME-TAX> (15)
<INCOME-CONTINUING> 199
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 199
<EPS-PRIMARY> 0.35<F1>
<EPS-DILUTED> 0.35
<FN>
<F1>EPS-PRIMARY REPRESENTS BASIC EARNINGS PER SHARE IN ACCORDANCE WITH STATEMENT
OF FINANCIAL ACCOUNTING STANDARD 128.
</FN>
</TABLE>
