Exhibit (3-1)
AMENDED ARTICLES
of
INCORPORATION
of
THE PROCTER & GAMBLE COMPANY
P&G
October, 2005
CERTIFICATE OF AMENDED ARTICLES
OF INCORPORATION
OF
THE PROCTER & GAMBLE COMPANY
A. G. Lafley, Chairman of the Board, President and Chief Executive, and
Steven W. Jemison, Secretary, of The Procter & Gamble Company, an Ohio
corporation, with its principal office located in Cincinnati, Hamilton County,
Ohio, do hereby certify that at a meeting of the Board of Directors of said
corporation, duly called and held on the 11th day of October, 2005, at which a
quorum of such Directors was present, the following resolution consolidating the
Amended Articles of all previously adopted amendments thereto presently in force
was adopted by the affirmative vote of all Directors present:
RESOLVED, That pursuant to the authority granted to this Board of
Directors by Section 1701.72(B) of the Ohio Revised Code, in order to
consolidate the provisions of the Amended Articles of Incorporation of
the Company and all amendments thereto heretofore adopted and still in
force, the Amended Articles of Incorporation are hereby further amended
to read in their entirety as presented at this meeting.
and that the Amended Articles of Incorporation of the corporation as thus
presented to and approved by the Directors at said meeting are as follows:
AMENDED ARTICLES OF INCORPORATION
OF
THE PROCTER & GAMBLE COMPANY
THE PROCTER & GAMBLE COMPANY, a corporation under the laws of the State of
Ohio, adopts these Amended Articles of Incorporation to supersede and take the
place of its existing Amended Articles of Incorporation, and all amendments
thereof, that are in force at this time, and for such purpose certifies as
follows:
FIRST: The name of the corporation is The Procter & Gamble Company.
SECOND: The place in the State of Ohio where its principal office is
located is in the City of Cincinnati, in Hamilton County.
THIRD: The purposes for which it is formed are to produce, manufacture,
buy, sell, merchandise and generally deal in the following:
1. Soap, soap products, cleansers, detergents and cleaning products of
any and all kinds, for any and all uses and purposes.
2. Cosmetics, perfumes, toilet powders, toilet waters, and all other
toilet preparations and articles.
3. Fats and oils, hydrogenated fats and oils, and derivatives of fats and
oils for any and all uses and purposes.
4. Cottonseed, soybeans, other oilseeds, oilseed meals, linters, cotton,
hulls and any products and any by-products resulting from the processing
of any of these or any products made therefrom.
5. Cellulose, cellulose products, purified cellulose, forest products,
fibrous products, paper and paper products of any and all kinds, and any
products and any by-products resulting from the processing of any of
these or any products made therefrom.
6. Food products of any and all kinds.
7. Candles, stearine, stearic acid, glycerine, silicate of soda, caustic
soda and any similar or related products.
8. Organic and inorganic chemicals, chemical compounds, drugs and
pharmaceuticals.
9. All substances and products, kindred to or competitive with any or all
of the foregoing and all that may result from or be convenient to the
production, manufacture, sale and dealing in any or all of the foregoing
substances and products.
10. All substances, materials, and articles made from or containing any
or all of the foregoing products or entering into or convenient for the
manufacture and sale of any or all of the foregoing products.
The purpose for which it is formed also include the power to do all other
things necessary or incident to any or all of the foregoing purposes, including
provision for insurance, financial and other services and of means for the
development, promotion, advertising, marketing and transportation of raw
materials, intermediate or finished products and the power to purchase, acquire,
hold, convey, lease, mortgage or dispose of stock, securities and property, real
or personal, tangible or intangible, in connection therewith or in furtherance
thereof.
In addition to the foregoing specified purposes and not limited in any
manner thereby, the purpose for which it is formed is to engage in any lawful
act or activity for which corporations may be formed under Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The authorized number of shares without par value is ten billion
eight hundred million (10,800,000,000) of which six hundred million
(600,000,000) are classified and designated as Class A Preferred Stock, two
hundred million (200,000,000) are classified and designated as Class B Preferred
Stock and ten billion (10,000,000,000) are classified and designated as Common
Stock.
1. The express terms and provisions of the shares classified and
designated as Class A Preferred Stock and Class B Preferred Stock are as
follows:
(a) The holders of the shares classified and designated as Class A
Preferred Stock shall be entitled to one (1) vote per share at all
meetings of the shareholders of the Company. The holders of the shares
classified and designated as Class B Preferred Stock shall not be
entitled to vote at meetings of shareholders of the Company, other
than as provided by law.
(b) The Board of Directors is authorized, subject to any limitations
prescribed by law and to the provisions of this Article FOURTH, to
adopt amendments to these Amended Articles of Incorporation in respect
of any unissued or treasury shares of the Class A Preferred Stock and
Class B Preferred Stock and thereby to fix or change: the division of
such shares into series and the designation and authorized number of
shares of each series; the dividend rate; the dates of payment of
dividends and the dates from which they are cumulative; liquidation
price; redemption rights and price; sinking fund requirements;
conversion rights; and restrictions on the issuance of such shares or
any series thereof. In addition the Board of Directors is hereby
authorized to similarly fix or change any or all other express terms
in respect of the Class A Preferred Stock and Class B Preferred Stock
as may be permitted or required by law.
(c) Upon the conversion of any share of Class A Preferred Stock and
Class B Preferred Stock, the stated capital of the Company shall be
reduced or increased in such a manner and at such a rate so that the
stated capital attributable to any share issued upon the exercise of
such conversion rights shall be the same as any other share of its
class and not the stated capital of the share so converted.
(d) The holders of the shares of Class A Preferred Stock and Class B
Preferred Stock shall receive dividends, when and as declared by the
Board of Directors, out of funds available for the payment of
dividends, before any dividend shall be paid on the shares of Common
Stock. Such dividends shall be payable at the rate per share per
annum, and no more, and pursuant to the other terms as shall have been
fixed by the Board of Directors, and no dividends shall be paid on the
shares of Common Stock unless the current dividend, and all the
arrears of dividends, if any, on the outstanding shares of the Class A
Preferred Stock and Class B Preferred Stock shall have been paid or
provision shall have been made for the payment thereof.
(e) In case of the dissolution or liquidation of the Company, before
any payment shall be made to the holders of the Common Stock, the
holders of the Class A Preferred Stock and Class B Preferred Stock
shall be entitled to be paid from the assets available therefor the
liquidation price fixed by the Board of Directors, and all accrued and
unpaid dividends thereon, but shall not be entitled to participate any
further in the distribution of the assets of the Company.
(f) Pursuant to subsection (b) of this Section 1, there is hereby
established a series of the Class A Preferred Stock with nine million
ninety thousand nine hundred nine (9,090,909) shares authorized which
is designated as "Series A ESOP Convertible Class A Preferred Stock"
with express terms as set forth in Appendix A attached hereto and
incorporated herein as if fully set forth herein.(1)
(g) Pursuant to subsection (b) of this Section 1, there is hereby
established a series of the Class A Preferred Stock with nineteen
million, one hundred forty-two thousand, four hundred eighteen
(19,142,418) shares authorized which is designated as "Series B ESOP
Convertible Class A Preferred Stock" with express terms as set forth
in Appendix B attached hereto and incorporated herein as if fully set
forth herein.(2)
2. The express terms and provisions of the shares classified and
designated as Common Stock are as follows:
(a) The holders of said shares shall be entitled to one (1) vote per
share at all meetings of the shareholders of the Company.
(b) After the payment to the holders of all Class A Preferred Stock
and Class B Preferred Stock of the preferential amounts to which they
shall be entitled in the event of the dissolution or liquidation of
the Company, the holders of the shares of Common Stock shall be
entitled to all of the residue of the assets and shall receive payment
thereof in proportion to the shares held by them respectively.
(c) Subject to the express terms and provisions of the shares
designated as Class A Preferred Stock and Class B Preferred Stock, the
holders of the shares of Common Stock shall have all, and all other
rights, interests, powers and privileges of shareholders of
corporations for profit as provided by law, without any restrictions,
qualifications or limitations thereof.
FIFTH: The stated capital of the Company shall be the aggregate stated
capital of all classes of outstanding shares:
(a) The stated capital of shares with par value shall be the par value
of such shares.
(b) The stated capital of shares without par value shall be One Dollar
($1.00) per share or such other amount required by law.
SIXTH: The following provisions are hereby agreed to for the purpose of
defining, limiting and regulating the exercise of the authority of the Company,
or of its shareholders, or of any class of shareholders, or of its directors, or
for the purpose of creating and defining rights and privileges of the
shareholders among themselves:
1. The Company may purchase, hold, sell, and reissue any of its shares
and to the extent that the authority to do the same may be granted
under these Articles, the Board of Directors shall have power to do
all said acts, without any action by shareholders, except as otherwise
provided below in this Article SIXTH.
2. No holder of shares of any class shall have any right, pre-emptive
or other, to subscribe for or to purchase from the Company any of the
shares of any class of the Company hereafter issued or sold.
3. (a) Except as otherwise provided in Subsection (b) of this Section
3 the following transactions shall require the affirmative vote of the
holders of at least eighty percent (80%) of the outstanding shares of
capital stock of the Company entitled to vote thereon, considered for
the purposes of this Section 3 as one class:
(i) the purchase by the Company of any of its shares of any class
from any Related Person, if any such shares have been
beneficially owned by the Related Person less than two years
prior to the date of such purchase or any agreement in respect
thereof;
(ii) any merger or consolidation of the Company or a subsidiary
of the Company with or into any Related Person, in each case
without regard to which entity is the surviving entity;
(iii) any sale, lease, exchange, transfer or other disposition of
all or any substantial part of the assets of the Company or a
subsidiary of the Company to or with any Related Person;
(iv) the purchase by the Company from any Related Person of any
assets or securities, or a combination thereof, except assets or
securities or a combination thereof so acquired in a single
transaction or a series of related transactions having an
aggregate fair market value of less than Fifty Million Dollars
($50,000,000);
(v) the issuance or transfer of any securities of the Company to
any Related Person for cash;
(vi) the adoption of any plan or proposal for the voluntary
dissolution, liquidation, spin-off, or split-up of any kind of
the Company or a subsidiary of the Company, or a recapitalization
or reclassification of any securities of the Company, proposed by
or on behalf of any Related Person; or
(vii) any other material transaction involving the Company or a
subsidiary of the Company with, or proposed by or on behalf of,
any Related Person.
Such affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national securities
exchange.
(b) The provisions of this Section 3 shall not apply to any purchase
described in Subsection (a)(i) of this Section 3 if the purchase would
be made as part of any purchase by the Company of its shares made on
the same terms to all holders of the shares to be purchased and
complying with the applicable requirements of the Securities Exchange
Act of 1934. the provisions of this Section 3 shall also not apply to
any transaction described in Subsection (a)(ii) through (vii) of this
Section 3 if the Board of Directors of the Company shall by resolution
have approved a memorandum of understanding with such Related Person
with respect to and substantially consistent with such transaction
prior to the time the Related Person became such, or if the
transaction is approved by a resolution adopted by the affirmative
vote of at least two-thirds (2/3) of the members of the whole Board of
Directors of the Company at any time prior to the consummation
thereof.
(c) For the purposes of this Section 3, and as guidance to the Board
of Directors for the purpose of Subsection (d) hereof, the term
"Related Person" shall mean (1) any individual, firm, corporation or
other entity, or group thereof acting or agreeing to act in the manner
set forth in Rule 13d-5 under the Securities Exchange Act of 1934 (the
"Act") as in effect on October 8, 1985, who is the beneficial owner,
directly or indirectly, of five percent (5%) or more of the
outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors and (2) any "Affiliate" or
"Associate" of any of the above or of any entity or group (or any
member thereof) described in Clause (1) above, whether or not acting
as a Director of the Company. The terms "Affiliate" and "Associate" as
used herein shall have the respective meanings ascribed to such terms
in The General Rules and Regulations under the Act as in effect on
October 8, 1985, and shall include any person otherwise acting in the
capacity of an "Associate" or "Affiliate". The Term "Related Person"
shall not include the Company, any subsidiary of the Company, any
employee benefit plan of the Company or of a subsidiary of the
Company, or any trustee of or fiduciary with respect to any such plan
acting in such capacity. In addition to all shares beneficially owned,
directly or indirectly, a Related Person shall also be deemed to be
the beneficial owner of any shares of capital stock of the Company (1)
which it has the right to acquire pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise; or
(2) which are beneficially owned, directly or indirectly (including
shares deemed owned through application of Clause (1) above), (A) by
its "Affiliate" or "Associate" or (B) by any other individual, firm
corporation, or other entity (or any "Affiliate" or "Associate"
thereof) with which it or its "Affiliate" or "Associate" of (B) by any
other individual, firm, corporation, or other entity (or any
"Affiliate" or "Associate" thereof) with which it or its "Affiliate"
or "Associate" has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of capital stock of
the Company. For the purposes of this Section 3, (A) the outstanding
shares of any class of capital stock of the Company shall include
shares deemed owned through the application of Clauses (1) and (2) of
the preceding sentence but shall not include any other shares which
may be issuable pursuant to any agreement, or upon exercise of
conversion rights, warrants or options, or otherwise, and (B)
subsidiary shall mean any corporation of which the Company owns,
directly or indirectly, fifty percent (50%) or more of the voting
stock.
(d) The Board of Directors of the Company shall have the power and
duty to determine for the purposes of this Section 3, on the basis of
information then known to it, whether (1) any individual, firm,
corporation, or other entity is a Related Person or is an "Affiliate"
or an "Associate", or a group thereof; (2) any proposed sale, lease,
exchange or other disposition of part of the assets of the Company or
a subsidiary of the Company involves all or any substantial part of
the assets of the Company or a subsidiary of the Company; (3) any
assets or securities, or a combination thereof, to be acquired by the
Company, have an aggregate fair market value of less than Fifty
Million Dollars ($50,000,000) and whether the same are proposed to be
acquired in a single transaction or a series of related transactions;
(4) any plan or proposal is for the voluntary dissolution,
liquidation, spin-off or split-up of any kind of the Company or a
subsidiary of the Company, or is a recapitalization or
reclassification of any securities of the Company, and whether any
plan or proposal is proposed by or on behalf of any Related Person;
(5) any transaction involving the Company or a subsidiary of the
Company with, or proposed by or on behalf of any Related Person is
material, and whether any such transaction is proposed by or on behalf
of any Related Person; and (6) the memorandum of understanding
referred to above is substantially consistent with the transaction to
which it relates.
(e) The Board of Directors of the Company, when evaluating any
material, unsolicited offer of another party to (1) merge or
consolidate the Company or a subsidiary of the Company with or into
another corporation; (2) purchase or otherwise acquire all or any
substantial part of the assets of the Company or a subsidiary of the
Company; (3) sell any assets or securities to the Company; (4)
purchase any securities from the Company or from the holders thereof
in a tender offer; (5) dissolve, liquidate, spin off or split up the
Company or a subsidiary of the Company, or to recapitalize or
reclassify any securities of the Company; or (6) involve the Company
or a subsidiary of the Company in any other material transaction,
shall, in connection with the exercise of its judgment in determining
what is in the best interests of the Company and its shareholders,
give due consideration to (A) all relevant factors, including without
limitation the financial and managerial resources and future prospects
of the other party and the social, legal, environmental and economic
effects on the employees, customers, suppliers and other affected
persons, firms and corporations and on the communities and
geographical areas in which the Company and its subsidiaries operate
or are located and on any of the business and properties of the
Company or any of its subsidiaries, as well as such other factors as
the Directors deem relevant; and (B) the amount and form of the
consideration being offered in relation to the then current market
price for the Company's outstanding shares of capital stock, in
relation to the then current value of the Company in a freely
negotiated transaction or transactions and in relation to the Board of
Directors' estimate of the future value of the Company (including the
unrealized value of its properties and assets) as in independent
concern. In evaluating any such offer, the Board of Directors shall be
deemed to be performing their duly authorized duties and acting in
good faith and in the best interests of the Company within the meaning
of Section 1701.13 of the Ohio Revised Code, as it may be amended from
time to time, and the Company's Regulations.
4. The statutes of Ohio require that action on certain specified matters at
a shareholders' meeting shall be taken by the affirmative vote of the
holders of more than a majority of shares entitled to vote thereon, unless
other provision is made in the Articles of Incorporation. On all these
specified matters action may be taken by the affirmative vote of a majority
of shares entitled to vote thereon or, if the vote is required to be by
classes, by the affirmative vote of a majority of each class of shares
entitled to vote thereon as a class, except that any amendment, alteration,
addition to or repeal of this Article SIXTH and of any of the matters
specified above in Section 3 of this Article SIXTH as requiring a vote
other than the affirmative vote of the holders of a majority of the shares
entitled to vote thereon, may only be taken, (1) prior to the date of the
annual meeting in 1990, by the affirmative vote of the holders of at least
eighty percent (80%) of the outstanding shares of capital stock of the
Company entitled to vote thereon, considered for the purposes of this
Section 4 as one class; (2) from the date of the annual meeting in 1990 to,
and including the date of the annual meeting in 2000, by the affirmative
vote of the holders of at least a majority of the outstanding shares of
capital stock of the Company entitled to vote thereon, considered for the
purposes of this Section 4 as one class, provided that during such period
said vote may be increased at any time to the affirmative vote of the
holders of at least eighty percent (80%) of the outstanding shares of
capital stock of the Company by a resolution adopted by at least two-thirds
(2/3) of the members of the whole Board of Directors(3); (3) after the date
of the annual meeting in 2000, by the affirmative vote of the holders of at
least a majority of the outstanding shares of capital stock of the Company
entitled to vote thereon, considered for the purposes of this Section 4 as
one class.
SEVENTH: No holder of shares of any class shall have the right to vote
cumulatively in the election of Directors.
IN WITNESS WHEREOF, said A. G. Lafley, Chairman of the Board, President and
Chief Executive, and Steven W. Jemison, Secretary, of The Procter & Gamble
Company, acting for and on behalf of said corporation, have hereunto subscribed
their names and caused the seal of said corporation to be hereunto affixed this
11th day of October, 2005.
THE PROCTER & GAMBLE COMPANY
A. G. LAFLEY
Chairman of the Board, President and
Chief Executive
STEVEN W. JEMISON
Secretary
- -----------------------
(1) As a result of four two-for-one stock splits on the Common Stock effective
October 10, 1989, May 15, 1992, August 22, 1997 and May 21, 2004, the
number of shares of Series A ESOP Convertible Class A Preferred Stock
authorized was automatically increased to 145,454,544 in accordance with
the terms of paragraph 9(A)(1) of Appendix A. (This footnote is not a part
of the Company's Amended Articles of Incorporation, but is included to
provide up-to-date information on the status of Series A ESOP Convertible
Class A Preferred Stock.)
(2) As a result of two two-for-one stock splits effective August 22, 1997 and
May 21, 2004, the number of shares of Series B ESOP Convertible Class A
Preferred Stock authorized was automatically increased to 76,569,672 in
accordance with the terms of paragraph 9(A)(1) of Appendix B. (This
footnote is not a part of the Company's Amended Articles of Incorporation,
but is included to provide up-to-date information on the status of Series
B ESOP Convertible Class A Preferred Stock.)
(3) On October 9, 1990, in accordance with this provision, the vote required
was increased to 80% of the outstanding shares of capital stock of the
Company. (This footnote is not a part of the Company's Amended Articles of
Incorporation, but is included to provide up-to-date information.)
APPENDIX A(4)
SERIES A ESOP CONVERTIBLE CLASS A PREFERRED STOCK
(HEREINAFTER REFERRED TO AS SERIES A PREFERRED STOCK)
1. ISSUANCE AND CANCELLATION.
(A) All shares of Series A Preferred Stock redeemed or purchased by the
Company shall be retired and shall be restored to the status of authorized but
unissued shares of Class A Preferred Stock.
(B) Shares of Series A Preferred Stock shall be issued only to a trustee or
trustees acting on behalf of an employee stock ownership trust or plan or other
employee benefit plan of the Company. In the event of any transfer of shares of
Series A Preferred Stock to any person other than any such plan trustee or
trustees, the shares of Series A Preferred Stock so transferred, upon such
transfer and without any further action by the Company or the holder, shall be
automatically converted into shares of Common Stock on the terms otherwise
provided for the conversion of shares of Series A 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 A Preferred Stock hereunder but,
rather, only the powers and rights pertaining to the Common Stock into which
such shares of Series A Preferred Stock shall be so converted. Certificates
representing shares of Series A Preferred Stock shall be legended to reflect
such restrictions on transfer. Notwithstanding the foregoing provisions of this
Section 1, shares of Series A 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.
2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series A Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors out of funds legally available
therefor, cash dividends ("Preferred Dividends") in an amount per share
initially equal to $8.12(4) per share per annum, subject to adjustment from time
to time as hereinafter provided, (such amount, as adjusted from time to time,
being hereinafter referred to as the "Preferred Dividend Rate"), payable
quarterly, one-fourth on the third day of March, one-fourth on the third day of
June, one-fourth on the third day of September, and one-fourth on the third day
of December of each year (each a "Dividend Payment Date") commencing on June 3,
1989, to holders of record at the start of business on such Dividend Payment
Date, provided that if the Board of Directors has declared since the prior
Dividend Payment Date a quarterly dividend on the Common Stock at a rate that
exceeds one-fourth of the Preferred Dividend Rate in effect on such day, the
holders of record on the start of business on the payment date for such dividend
on the Common Stock shall be entitled to receive a cash dividend in an amount
per share equal to the quarterly dividend declared on a share of Common Stock,
payable on the same date as such dividend on the Common Stock, and provided
further that the Dividend Payment Date for the Series A Preferred Stock shall
thereafter be the same date as the payment date for the dividend on the Common
Stock or if no dividend is declared on the Common Stock in any quarter, the
Dividend Payment Date shall be, as appropriate, the fifteenth day of February,
May, August or November or if such days are not a day on which the New York
Stock Exchange is open for business, then the next preceding day when the New
York Stock Exchange is open for business. Preferred Dividends shall begin to
accrue on outstanding shares of Series A Preferred Stock from the date of
issuance of such shares of Series A Preferred Stock. Preferred Dividends shall
accrue on a daily basis, based on the Preferred Dividend Rate in effect on such
day, whether or not the Company shall have earnings or surplus at the time, but
Preferred Dividends accrued after March 3, 1989 on the shares of Series A
Preferred Stock for any period less than a full quarterly period between
Dividend Payment Dates shall be computed on the basis of a 360-day year of
30-day months. A full quarterly dividend payment of $2.03(4) per share shall
accrue for the period from the date of issuance until June 3, 1989. Accumulated
but unpaid Preferred Dividends shall cumulate as of the Dividend Payment Date on
which they first become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends.
(B)(1) No full dividends shall be declared or paid or set apart for payment
on any shares ranking, as to dividends, on a parity with or junior to the Series
A Preferred Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series A Preferred Stock for
all Dividend Payment Dates occurring on or prior to the date of payment of such
full dividends. When dividends are not paid in full, as aforesaid, upon the
shares of Series A Preferred Stock shall be declared pro rata so that the amount
of dividends declared per share on Series A Preferred Stock and such other
parity shares shall in all cases bear to each other the same ratio that
accumulated dividends per share on the shares of Series A Preferred Stock and
such other parity shares bear to each other. Except as otherwise provided in
these Articles, holders of shares of Series A Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or shares, in
excess of full cumulative dividends, as herein provided, on Series A Preferred
Stock.
(2) So long as any shares of Series A Preferred Stock are outstanding, no
dividend (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common Stock or other
shares ranking junior to Series A Preferred Stock as to dividends and other than
as provided in paragraph (B)(1) of this Section 2) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other shares ranking junior to or on a parity with Series A
Preferred Stock as to dividends, nor shall any Common Stock or any other shares
of the Company ranking junior to or on a parity with Series A Preferred Stock as
to dividends be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Company (except by conversion into or
exchange for shares of the Company ranking junior to Series A Preferred Stock as
to dividends) unless, in each case, the full cumulative dividends on all
outstanding shares of Series A Preferred Stock shall have been paid.
(3) Any dividend payment made on shares of Series A Preferred Stock shall
first be credited against the earliest accumulated but unpaid dividend due with
respect to shares of Series A Preferred Stock.
3. LIQUIDATION PREFERENCE.
(A) In the event of any dissolution or liquidation of the Company, whether
voluntary or involuntary, before any payment or distribution of the assets of
the Company (whether capital or surplus) shall be made to or set apart for the
holders of any series or class or classes of stock of the Company ranking junior
to Series A Preferred Stock upon dissolution or liquidation, the holders of
Series A Preferred Stock shall be entitled to receive the Liquidation Price (as
hereinafter defined) per share in effect at the time of dissolution or
liquidation plus an amount equal to all dividends accrued (whether or not
accumulated) and unpaid thereon to the date of final distribution to such
holders; but such holders shall not be entitled to any further payments. The
Liquidation Price per share which holders of Series A Preferred Stock shall
receive upon dissolution or liquidation shall be $110.00(4), subject to
adjustment as hereinafter provided. If, upon any dissolution or liquidation of
the Company, the assets of the Company, or proceeds thereof, distributable among
the holders of Series A Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares
ranking as to dissolution or liquidation, on a parity with Series A Preferred
Stock, then such assets, or the proceeds thereof, shall be distributed among the
holders of Series A Preferred Stock and any such other shares ratably in
accordance with the respective amounts which would be payable on such shares of
Series A Preferred Stock and any such other shares if all amounts payable
thereon were paid in full. For the purposes of this Section 3, a consolidation
or merger of the Company with one or more corporations shall not be deemed to be
a dissolution or liquidation, voluntary or involuntary.
(B) Subject to the rights of the holders of shares of any series or class
or classes of stock ranking on a parity with or prior to Series A Preferred
Stock upon dissolution or liquidation, upon any dissolution or liquidation of
the Company, after payment shall have been made in full to the holders of Series
A Preferred Stock as provided in this Section 3, but not prior thereto, any
other series or class or classes of stock ranking junior to Series A Preferred
Stock upon dissolution or liquidation shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of Series A Preferred Stock
shall not be entitled to share therein.
4. RANKING OF SHARES.
Any shares of the Company shall be deemed to rank:
(A) prior to Series A Preferred Stock as to dividends or as to distribution
of assets upon dissolution or liquidation, if the holders of such class shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution or liquidation, as the case may be, in preference or priority to the
holders of Series A Preferred Stock;
(B) on a parity with Series A Preferred Stock as to dividends or as to
distribution of assets upon dissolution or liquidation, whether or not the
dividend rates, dividend payment dates, or redemption or liquidation prices per
share thereof be different from those of Series A Preferred Stock, if the
holders of such class of stock and Series A Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable upon dissolution or
liquidation, as the case may be, in proportion to their respective dividend or
liquidation amounts, as the case may be, without preference or priority one over
the other; and
(C) junior to Series A Preferred Stock as to dividends or as to the
distribution of assets upon dissolution or liquidation, if such shares shall be
Common Stock or if the holders of Series A Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon dissolution or
liquidation, as the case may be, in preference or priority to the holders of
such shares.
5. CONVERSION INTO COMMON STOCK.
(A) A holder of shares of Series A 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, or 8 hereof, to cause any or all of such
shares to be converted into shares of Common Stock. The number of shares of
Common Stock into which each share of the Series A Preferred Stock may be
converted shall be determined by dividing the Liquidation Price in effect at the
time of conversion by the Conversion Price (as hereinafter defined) in effect at
the time of conversion. The Conversion Price per share at which shares of Common
Stock shall be initially issuable upon conversion of any shares of Series A
Preferred Stock shall be $110.00(4), subject to adjustment as hereinafter
provided.
(B) Any holder of shares of Series A Preferred Stock desiring to convert
such shares into shares of Common Stock shall surrender, if certificated, the
certificate or certificates representing the shares of Series A Preferred Stock
being converted, duly assigned or endorsed for transfer to the Company (or
accompanied by duly executed stock powers relating thereto), or if
uncertificated, a duly executed stock power relating thereto, at the principal
executive office of the Company or the offices of the transfer agent for the
Series A Preferred Stock or such office or offices in the continental United
States or an agent for conversion as may from time to time be designated by
notice to the holders of the Series A Preferred Stock by the Company or the
transfer agent for the Series A Preferred Stock, accompanied by written notice
of conversion. Such notice of conversion shall specify (i) the number of shares
of Series A Preferred Stock to be converted and the name or names in which such
holder wishes the Common Stock and any shares of Series A Preferred Stock not to
be so converted to be issued, and (ii) the address to which such holder wishes
delivery to be made of a confirmation of such conversion, if uncertificated, or
any new certificates which may be issued upon such conversion if certificated.
(C) Upon surrender, if certificated, of a certificate representing a share
or shares of Series A Preferred Stock for conversion, or if uncertificated, of a
duly executed stock power relating thereto, 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, if certificated, a certificate or certificates for,
or if uncertificated, confirmation of, 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 shares of Series A Preferred Stock, only part of
which are to be converted, the Company shall issue and deliver to such holder or
such holder's designee, if certificated, a new certificate or certificates
representing the number of shares of Series A Preferred Stock which shall not
have been converted, or if uncertificated, confirmation of the number of shares
of Series A 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 A 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 if
certificated or confirmation if uncertificated or (ii) the commencement of
business on the second business day after the surrender of the certificate or
certificates, if certificated, or a duly executed stock power, if
uncertificated, for the shares of Series A Preferred Stock to be converted. On
and after the effective date of conversion, the person or persons entitled to
receive 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 of record on any date 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 A Preferred Stock on a Dividend
Payment Date if such Dividend Payment Date for such dividend shall be on or
subsequent to the effective date of conversion of such shares.
(E) The Company shall not be obligated to deliver to holders of Series A
Preferred Stock any fractional share or shares of Common Stock issuable upon any
conversion of such shares of Series A Preferred Stock, but in lieu thereof may
make a cash payment in respect thereof in any manner permitted by law.
(F) The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock or treasury Common Stock, solely for
issuance upon the conversion of shares of Series A Preferred Stock as herein
provided, such number of shares of Common Stock as shall from time to time be
issuable upon the conversion of all the shares of Series A Preferred Stock then
outstanding.
6. REDEMPTION AT THE OPTION OF THE COMPANY.
(A) The Series A Preferred Stock shall be redeemable, in whole or in part,
at the option of the Company at any time after March 3, 1994 (or on or before
March 3, 1994 if permitted by, and at the redemption price provided in,
paragraph (C) of this Section 6) at the following redemption prices per share:
DURING THE
TWELVE MONTH
PERIOD
BEGINNING PRICE PER
MARCH 4, SHARE
1989 107.3750% of Liquidation Price in effect on date fixed for redemption
1990 106.6375% "
1991 105.9000% "
1992 105.1625% "
1993 104.4250% "
1994 103.6875% "
1995 102.9000% "
1996 102.2125% "
1997 101.4750% "
1998 100.7375% "
and thereafter at 100% of the Liquidation Price per share in effect on the date
fixed for redemption, plus, in each case (including in the case of redemptions
pursuant to paragraph (C) of this Section 6), an amount equal to all accrued
(whether or not accumulated) 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
(D) of this Section 6. From and after the date fixed for redemption, dividends
on shares of Series A 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 A
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 A Preferred Stock at the address shown on the books of the
Company or any transfer agent for Series A 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 notice shall state: (i) the redemption
date; (ii) the total number of shares of the Series A 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, if certificated,
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; (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 A Preferred Stock at the time. Upon surrender of the certificates, if
certificated, for any shares so called for redemption and not previously
converted, or upon the date fixed for redemption if uncertificated, 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 (i) 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 A 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 A
Preferred Stock are initially issued, or (ii) The Procter & Gamble Profit
Sharing Trust and Employee Stock Ownership Plan, as authorized by the Board of
Directors of the Company on January 10, 1989, and as amended from time to time
thereafter failing to receive a determination from the Internal Revenue Service
that it is a qualified plan within the meaning of Section 401(a) or is an
employee stock ownership plan as described in Section 4975(e)(7) of the Internal
Revenue Code of 1986, as amended, and in effect on the date shares of Series A
Preferred Stock are initially issued, then, in either such event, the Company
may, in its sole discretion and notwithstanding anything to the contrary in
paragraph (A) of this Section 6, elect to redeem such shares for the Liquidation
Price in effect on the date fixed for redemption, plus, in each case, an amount
equal to all accrued (whether or not accumulated) and unpaid dividends thereon
to the date fixed for redemption. In the event the Company terminates the
employee stock ownership plan of The Procter & Gamble Profit Sharing Trust and
Employee Stock Ownership Plan, the Company may, in its sole discretion and
notwithstanding anything to the contrary in paragraph (A) of this Section 6,
elect to redeem such shares at the redemption prices per share provided in
paragraph (A) of this Section 6.
(D) The Company, at its option, may make payment of the redemption price
required upon redemption of shares of Series A 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 purpose at the average of the high
and low reported sales price, or, in case no sale takes place on such day, the
average reported closing bid and asked price, in either case as reported on the
New York Stock Exchange Tape on the date of redemption, or if not listed or
admitted to trading on the New York Stock Exchange, in accordance with the
valuation methods provided in paragraph 9(F)(2).
7. REDEMPTION AT THE OPTION OF THE HOLDER.
Unless otherwise provided by law, shares of Series A 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 (D) of
Section 6, at the Liquidation Price per share in effect on the date fixed for
redemption plus all accrued (whether or not accumulated) 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
redemption, when and to the extent necessary for such holder to provide for
distributions required to be made under, or to satisfy an investment election
provided to participants in accordance with, The Procter & Gamble Profit Sharing
Trust and Employee Stock Ownership Plan, as the same may be amended, or any
successor plan (the "Plan").
8. CONSOLIDATION, MERGER, ETC.
(A) In the event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged solely for or changed,
reclassified or converted solely into shares of any successor or resulting
company (including the Company) that constitutes "qualifying employer
securities" with respect to a holder of Series A Preferred Stock within the
meanings of Section 4975(e)(8) 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 provision of law, and, if applicable, for a cash
payment in lieu of fractional shares, if any, then, in such event, the terms of
such consolidation or merger or similar transaction shall provide that the
shares of Series A Preferred Stock of such holder shall be submitted for and
shall become preferred shares of such successor or resulting company, having in
respect of such company insofar as possible the same powers, preferences and
relative, participating, optional or other special rights (including the
redemption rights provided by Sections 6, 7, and 8 hereof), and the
qualifications, limitations or restrictions thereon, that the Series A Preferred
Stock had immediately prior to such transaction; provided, however, that after
such transaction each share of the Series A Preferred Stock shall be
convertible, pursuant to the terms and conditions provided by Section 5 hereof,
into the qualifying employer securities so receivable by a holder of the number
of shares of Common Stock into which such shares of Series A Preferred Stock
could have been converted immediately prior to 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 of qualifying employer securities 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). The rights of the Series A Preferred
Stock as preferred shares of such successor or resulting company shall
successively be subject to adjustments pursuant to Section 9 hereof after any
such transaction as nearly equivalent to the adjustments provided for by such
section prior to such transaction. The Company shall not consummate any such
merger, consolidation or similar transaction unless all the terms of this
paragraph 8(A) are complied with.
(B) In the event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged for or changed,
reclassified or converted into other shares or securities or cash or any other
property, or any combination thereof, other than any such consideration which is
constituted solely of qualifying employer securities (as referred to in
paragraph (A) of this Section 8) and cash payments, if applicable, in lieu of
fractional shares, outstanding shares of Series A 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 deemed 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 A
Preferred Stock could have been converted at such time and each share of Series
A 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 shares, 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 A 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 shares, securities, cash or other
property receivable upon such transaction (provided that, if the kind or amount
of shares, securities, cash or other property receivable upon such transaction
is not the same for each non-electing share, then the kind and amount of shares,
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 non-electing shares).
(C) In the event the Company shall enter into any agreement providing for
any consolidation or merger or similar transaction described in paragraph (B) of
this Section 8, then the Company shall as soon as practicable thereafter (and in
any event at least ten (10) business days before consummation of such
transaction) give notice of such agreement and the material terms thereof to
each holder of Series A 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 A Preferred Stock, a cash payment equal to the Liquidation Price in
effect on the date set for redemption plus all accrued (whether or not
accumulated) and unpaid dividends. 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.
9. ANTI-DILUTION ADJUSTMENTS.
(A)(1) Subject to the provisions of paragraph 9(D), in the event the
Company shall, at any time or from time to time while any of the shares of the
Series A Preferred Stock are outstanding, (i) pay a dividend or make a
distribution in respect of the Common Stock in shares of Common Stock or (ii)
subdivide or combine the outstanding shares of Common Stock into a greater or
lesser number of shares, in each case whether by reclassification of shares,
recapitalization of the Company (excluding a recapitalization or
reclassification effected by a merger or consolidation to which Section 8 hereof
applies) or otherwise, then, in such event, each share of Series A Preferred
Stock will automatically, without any action on the part of the holder thereof
or the Company, become that number of shares of Series A Preferred Stock (the
"Non-dilutive Share Amount") equal to an amount which is 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 outstanding immediately before such event. An adjustment
pursuant to this paragraph 9(A)(1) shall be effective upon payment of such
dividend or distribution in respect of the Common Stock and in the case of a
subdivision or combination shall become effective immediately as of the
effective date thereof. Concurrently with the automatic adjustment pursuant to
this paragraph 9(A)(1), the Conversion Price, the Liquidation Price and the
Preferred Dividend Rate of all shares of Series A Preferred Stock shall be
adjusted by dividing the Conversion Price, the Liquidation Price and the
Preferred Dividend Rate, respectively, in effect immediately before the event by
the Non-dilutive Share Amount determined pursuant to this paragraph 9(A)(1).
(2) The Company and the Board of Directors shall each use its best efforts
to take all necessary steps or to take all actions as are necessary or
appropriate for implementation of the automatic adjustment provided in paragraph
9(A)(1). In the event for any reason the Company is precluded from giving full
effect to the automatic adjustment provided in paragraph 9(A)(1), then no such
automatic adjustment shall occur, but instead the Conversion Price shall
automatically be adjusted by dividing the Conversion Price in effect immediately
before the event by the Non-dilutive Share Amount determined pursuant to
paragraph 9(A)(1), and the Liquidation Price and the Preferred Dividend Rate
will not be adjusted. An adjustment to the Conversion Price made pursuant to
this paragraph 9(A)(2) shall be given effect, upon payment of such a dividend or
distribution, as of the record date for the determination of shareholders
entitled to receive such dividend or distribution (on a retroactive basis) and
in the case of a subdivision or combination shall become effective immediately
as of the effective date thereof. If subsequently the Company is able to give
full effect to the automatic adjustment as provided in paragraph 9(A)(1), then
such automatic adjustment will proceed in accordance with the provisions of
paragraph 9(A)(1) and the adjustment in the Conversion Price as provided in this
paragraph 9(A)(2) will automatically be reversed and nullified prospectively.
(B)(1) Subject to the provisions of paragraph 9(D), in the event the
Company shall, at any time or from time to time while any of the shares of
Series A 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, in such event, each share of Series A Preferred Stock will
automatically, without any action on the part of the holder thereof or the
Company, become that number of shares of Series A Preferred Stock (the
"Non-dilutive Share Amount") equal to an amount which is a fraction the
numerator of which is 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 and the denominator of which is 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. Concurrently with the automatic adjustment pursuant to this
paragraph 9(B)(1), the Conversion Price, the Liquidation Price and the Preferred
Dividend Rate of all shares of Series A Preferred Stock shall be adjusted by
dividing the Conversion Price, the Liquidation Price and the Preferred Dividend
Rate, respectively, in effect immediately before such issuance of rights or
warrants by the Non-dilutive Share Amount determined pursuant to this paragraph
9(B)(1).
(2) The Company and the Board of Directors shall each use its best efforts
to take all necessary steps or to take all actions as are necessary or
appropriate for implementation of the automatic adjustment provided in paragraph
9(B)(1). In the event for any reason the Company is precluded from giving full
effect to the automatic adjustment provided in paragraph 9(B)(1), then no such
automatic adjustment shall occur, but instead the Conversion Price shall
automatically be adjusted by dividing the Conversion Price in effect immediately
before such issuance of rights or warrants by the Non-Dilutive Share Amount
determined pursuant to paragraph 9(B)(1), and the Liquidation Price and
Preferred Dividend Rate will not be adjusted. If subsequently the Company is
able to give full effect to the automatic adjustment as provided in paragraph
9(B)(1), then such automatic adjustment will proceed in accordance with the
provisions of paragraph 9(B)(1) and the adjustment in the Conversion Price as
provided in this paragraph 9(B)(2) will automatically be reversed and nullified
prospectively.
(C)(1) Subject to the provisions of paragraph 9(D), in the event the
Company shall, at any time or from time to time while any of the shares of
Series A 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 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, then, in such event, each
share of Series A Preferred Stock will automatically, without any action on the
part of the holder thereof or the Company, become that number of shares of
Series A Preferred Stock (the "Non-dilutive Share Amount") equal to an amount
which is a fraction the numerator of which is the product of (a) the number of
shares of Common Stock outstanding immediately before such Extraordinary
Distribution 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 record date with
respect to an Extraordinary Distribution 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, and the denominator of which is
(i) the Fair Market Value of a share of Common Stock on the record date with
respect to an Extraordinary Distribution, or on the applicable expiration date
(including all extensions thereof) of any tender offer which is a Pro Rata
Repurchase, or on the date of purchase with respect to any Pro Rata Repurchase
which is not a tender offer, as the case may be, minus (ii) the Fair Market
Value of the Extraordinary Distribution or the aggregate purchase price of the
Pro Rata Repurchase, as the case may be. The Company shall send each holder of
Series A 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 A Preferred Stock may be converted at such time.
Concurrently with the automatic adjustment pursuant to this paragraph 9(C)(1),
the Conversion Price, the Liquidation Price and the Preferred Dividend Rate of
all shares of Series A Preferred Stock shall be adjusted by dividing the
Conversion Price, the Liquidation Price and the Preferred Dividend Rate,
respectively, in effect immediately before such Extraordinary Distribution or
Pro Rata Repurchase by the Non-dilutive Share Amount determined pursuant to this
paragraph 9(C)(1).
(2) The Company and the Board of Directors shall each use its best efforts
to take all necessary steps or to take all actions as are necessary or
appropriate for implementation of the automatic adjustment provided in paragraph
9(C)(1). In the event for any reason the Company is precluded from giving full
effect to the automatic adjustment provided in paragraph 9(C)(1), then no such
automatic adjustment shall occur, but instead the Conversion Price shall
automatically be adjusted by dividing the Conversion Price in effect immediately
before such Extraordinary Distribution or Pro Rata Repurchase by the
Non-dilutive Share Amount, and the Liquidation Price and the Preferred Dividend
Rate will not be adjusted. If subsequently the Company is able to give full
effect to the automatic adjustment as provided in paragraph 9(C)(1), then such
automatic adjustment will proceed in accordance with the provisions of paragraph
9(C)(1) and the adjustment in the Conversion Price as provided in this paragraph
9(C)(2) will automatically be reversed and nullified prospectively.
(D) Notwithstanding any other provisions of this Section 9, the Company
shall not be required to make (i) any adjustment of the number of issued shares
of Series A Preferred Stock, the Conversion Price, the Liquidation Price or the
Preferred Dividend Rate unless such adjustment would require an increase or
decrease of at least one percent (1%) in the number of shares of Series A
Preferred Stock outstanding, or, (ii) if no additional shares of Series A
Preferred Stock are issued, any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Conversion Price. Any lesser adjustment shall be carried forward and shall
be made no later than the time of, and together with, the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least one percent (1%) of
the number of Series A Preferred Shares outstanding or, if no additional shares
of Series A Preferred Stock are being issued, an increase or decrease of at
least one percent (1%) of the Conversion Price, whichever the case may be.
(E) 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 appropriate adjustment to the number of
shares of Series A Preferred Stock outstanding or the Conversion Price pursuant
to the foregoing provisions of this Section 9, the Board of Directors of the
Company may, in its sole discretion, consider whether such action is of such a
nature that some type of equitable adjustment should be made in respect of such
transaction. If in such case the Board of Directors of the Company determines
that some type of adjustment should be made, an equitable adjustment not
repugnant to law and for the protection of the conversion rights of the Series A
Preferred Stock 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 some type of adjustment should be made pursuant to
the foregoing provisions of this paragraph 9(E), and, if so, as to what
adjustment should be made and when, shall be final and binding on the Company
and all shareholders of the Company. The Company shall be entitled to make such
additional adjustments, 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 the Company or any recapitalization
of the Company shall not be taxable to holders of the Common Stock.
(F) For purposes of this Appendix A, the following definitions shall apply:
(1) "Extraordinary Distribution" shall mean any dividend or other
distribution (effected while any of the shares of Series A Preferred Stock are
outstanding) of (i) 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 twelve (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 record date for determining the shareholders
entitled to receive such Extraordinary Distribution and (ii) any shares of
capital stock of the Company (other than shares of Common Stock), other
securities of the Company (other than securities of the type referred to in
paragraph (B) of this Section 9), evidences of indebtedness of the Company or
any other person or any other property (including shares of any subsidiary of
the Company), or any combination thereof. The Fair Market Value of an
Extraordinary Distribution for purposes of paragraph (C) of this Section 9 shall
be the sum of the Fair Market Value of such Extraordinary Distribution plus the
aggregate amount of any cash dividends or distributions which are not
Extraordinary Distributions made during such twelve month period and not
included in the calculation of any previous adjustment pursuant to paragraph (C)
of this Section 9.
(2) "Fair Market Value" shall mean, as to shares of Common Stock or any
other class of capital stock or securities of the Company or any other issuer
which are publicly traded, the average of the Current Market Prices (as
hereinafter defined) of such shares or securities for each day of the Adjustment
Period (as hereinafter defined). "Current Market Price" of publicly traded
shares of Common Stock or any other class of capital stock or other security of
the Company or any other issuer for a day shall mean the last reported sales
price, regular way, or, in case no sale takes place on such day, the average
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 on each trading day during the Adjustment Period. "Adjustment Period"
shall mean the period of five (5) consecutive trading days, selected by the
Board of Directors of the Company, during the twenty (20) trading days
preceding, and including, the date as of which the Fair Market Value of a
security is to be determined. The "Fair Market Value" of any security 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, if no such investment banking or
appraisal firm is in the good faith judgment of the Board of Directors of the
Company available to make such determination, as determined in good faith by the
Board of Directors of the Company.
(3) "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 A Preferred Stock are outstanding, pursuant to any tender
offer or exchange offer subject to Section 13(e) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any successor provision of law, or
pursuant to any other offer available to substantially all holders of Common
Stock; provided, however, that no purchase of shares by the Company or any
subsidiary thereof made in open market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this paragraph 9(F), 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 A Preferred Stock are initially issued by the Company or on
such other terms and conditions as the Board of Directors of the Company shall
have determined are reasonably designed to prevent such purchases from having a
material effect on the trading market for the Common Stock.
(G) Whenever an adjustment increasing the number of shares of Series A
Preferred Stock outstanding is required pursuant to this Appendix A, the Board
of Directors shall take such action as is necessary so that a sufficient number
of shares of Series A Preferred Stock are designated with respect to such
increase resulting from such adjustment. Whenever an adjustment to the
Conversion Price, the Liquidation Price or the Preferred Dividend Rate of the
Series A Preferred Stock is required pursuant to this Appendix A, the Company
shall forthwith place on file with the transfer agent for the Common Stock and
the Series A Preferred Stock if there be one, and with the Treasurer of the
Company, a statement signed by the Treasurer or Assistant Treasurer of the
Company stating the adjusted Conversion Price, Liquidation Price and Preferred
Dividend Rate determined as provided herein. 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 number
of shares of Series A Preferred Stock outstanding, the Conversion Price, the
Liquidation Price or the Preferred Dividend Rate, the Company shall mail a
notice thereof and of the then prevailing number of shares of Series A Preferred
Stock outstanding, the Conversion Price, the Liquidation Price and the Preferred
Dividend Rate to each holder of shares of Series A Preferred Stock.
10. MISCELLANEOUS.
(A) All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of receipt thereof
or three (3) business days after the mailing thereof if sent by registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this Appendix A) with postage prepaid, addressed: (i) if to the
Company, to its office at One Procter & Gamble Plaza, Cincinnati, Ohio 45202
(Attention: Treasurer) or to the transfer agent for the Series A Preferred
Stock, or other agent of the Company designated as permitted by this Appendix A
or (ii) if to any holder of the Series A 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 A 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 Appendix A means the Company's
Common Stock without par value, as the same exists at the date of filing of the
Amendment to the Company's Amended Articles of Incorporation first designating
Series A 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 without par value, or from without 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 Appendix A, the holder of any share of the Series
A 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 anti-dilution provisions contained in Section 9
hereof shall apply in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock, and the provisions of Sections 1
through 8 and 10 of this Appendix A 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 A Preferred Stock or shares of Common Stock or other securities issued on
account of Series A 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 A Preferred Stock or Common Stock or
other securities in a name other than that in which the shares of Series A
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 A 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 A 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 a
Preferred Stock as shown on the records of the Company and to send the
certificate or certificates or other documentation representing such shares, or
such payment, to the address of such holder shown on the records of the Company.
(E) The Company may appoint, and from time to time discharge and change, a
transfer agent for the Series A Preferred Stock. Upon any such appointment or
discharge of a transfer agent, the Company shall send notice thereof by
first-class mail, postage prepaid, to each holder of record of Series A
Preferred Stock.
(4) As a result of four two-for-one stock splits on the Common Stock
effective October 10, 1989, May 15, 1992, August 22, 1997 and May 21,
2004, and the Smucker transaction effective June 1, 2002, the
Conversion Price, Liquidation Price and Preferred Dividend Rate were
all adjusted in accordance with the terms of paragraph 9(A)(1) of this
Appendix A to be as follows: Conversion Price -- $6.82; Liquidation
Price -- $6.82; Preferred Dividend Rate -- $.5036075 per share per
annum, with a corresponding change in the quarterly dividend payment.
(This footnote is not a part of the Company's Amended Articles of
Incorporation but is included to provide up-to-date information on the
status of Series A ESOP Convertible Class A Preferred Stock.)
APPENDIX B(5)
SERIES B ESOP CONVERTIBLE CLASS A PREFERRED STOCK
(HEREINAFTER REFERRED TO AS SERIES B PREFERRED STOCK)
1. CANCELLATION.
All shares of Series B Preferred Stock redeemed or purchased by the Company
shall be retired and shall be restored to the status of authorized but unissued
shares of Class A Preferred Stock.
2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series B Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors out of funds legally available
therefor, cash dividends ("Series B Preferred Dividends") in an amount per share
initially equal to $4.12(5) per share per annum, subject to adjustment from time
to time as hereinafter provided, (such amount, as adjusted from time to time,
being hereinafter referred to as the "Series B Preferred Dividend Rate"),
payable quarterly, one-fourth on the twenty-seventh day of November, one-fourth
on the twenty-seventh day of February, one-fourth on the twenty-seventh day of
May, and one-fourth on the twenty-seventh day of August of each year (each a
"Series B Dividend Payment Date") commencing on August 27, 1993, to holders of
record at the close of business on the second Friday of the relevant Series B
Dividend Payment Date month, provided that if the Board of Directors has
declared since the prior Dividend Payment Date a quarterly dividend on the
Common Stock at a rate that exceeds one-fourth of the Preferred Dividend Rate in
effect on such day, the holders of record on the start of business on the
payment date for such dividend on the Common Stock shall be entitled to receive
a cash dividend in an amount per share equal to the quarterly dividend declared
on a share of Common Stock, payable on the same date as such dividend on the
Common Stock, and provided further that the Dividend Payment Date for the Series
B Preferred Stock shall thereafter be the same date as the payment date for the
dividend on the Common Stock or if no dividend is declared on the Common Stock
in any quarter, the Dividend Payment Date shall be, as appropriate, the
fifteenth day of February, May, August or November or if such days are not a day
on which the New York Stock Exchange is open for business, then the next
preceding day when the New York Stock Exchange is open for business. Series B
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. Series B Preferred Dividends shall accrue on a daily basis, based on the
Series B Preferred Dividend Rate in effect on such day, whether or not the
Company shall have earnings or surplus at the time, but Series B Preferred
Dividends accrued after June 30, 1993 on the shares of Series B Preferred Stock
for any period less than a full quarterly period between Series B Dividend
Payment Dates shall be computed on the basis of a 360-day year of 30-day months.
A partial dividend payment of $.64935(5) per share shall accrue for the period
from the date of issuance until August 27, 1993. Accumulated but unpaid Series B
Preferred Dividends shall cumulate as of the Series B Dividend Payment Date on
which they first become payable, but no interest shall accrue on accumulated but
unpaid Series B Preferred Dividends.
(B)(1) No full dividends shall be declared or paid or set apart for payment
on any shares ranking, as to dividends, on a parity with or junior to the Series
B Preferred Stock, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series B Preferred Stock for
all Series B Dividend Payment Dates occurring on or prior to the date of payment
of such full dividends. When dividends are not paid in full, as aforesaid, upon
the shares of Series B Preferred Stock and any other shares ranking, as to
dividends, on a parity with Series B Preferred Stock, all dividends declared
upon shares of Series B Preferred Stock shall be declared pro rata so that the
amount of dividends declared per share on Series B Preferred Stock and such
other parity shares shall in all cases bear to each other the same ratio that
accumulated dividends per share on the shares of Series B Preferred Stock and
such other parity shares bear to each other. Except as otherwise provided in
these Articles, holders of shares of Series B Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or shares, in
excess of full cumulative dividends, as herein provided, on Series B Preferred
Stock.
(2) So long as any shares of Series B Preferred Stock are outstanding, no
dividend (other than dividends or distributions paid in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Common Stock or other
shares ranking junior to Series B Preferred Stock as to dividends and other than
as provided in paragraph (B)(1) of this Section 2) shall be declared or paid or
set aside for payment or other distribution declared or made upon the Common
Stock or upon any other shares ranking junior to or on a parity with Series B
Preferred Stock as to dividends, nor shall any Common Stock or any other shares
of the Company ranking junior to or on a parity with Series B Preferred Stock as
to dividends be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Company (except by conversion into or
exchange for shares of the Company ranking junior to Series B Preferred Stock as
to dividends) unless, in each case, the full cumulative dividends on all
outstanding shares of Series B Preferred Stock shall have been paid.
(3) Any dividend payment made on shares of Series B Preferred Stock shall
first be credited against the earliest accumulated but unpaid dividend due with
respect to shares of Series B Preferred Stock.
3. LIQUIDATION PREFERENCE.
(A) In the event of any dissolution or liquidation of the Company, whether
voluntary or involuntary, before any payment or distribution of the assets of
the Company (whether capital or surplus) shall be made to or set apart for the
holders of any series or class or classes of stock of the Company ranking junior
to Series B Preferred Stock upon dissolution or liquidation, the holders of
Series B Preferred Stock shall be entitled to receive the Series B Liquidation
Price (as hereinafter defined) per share in effect at the time of dissolution or
liquidation plus an amount equal to all dividends accrued (whether or not
accumulated) and unpaid thereon to the date of final distribution to such
holders; but such holders shall not be entitled to any further payments. The
Series B Liquidation Price per share which holders of Series B Preferred Stock
shall receive upon dissolution or liquidation shall be $52.24(5), subject to
adjustment as hereinafter provided. If, upon any dissolution or liquidation of
the Company, the assets of the Company, or proceeds thereof, distributable among
the holders of Series B Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares
ranking as to dissolution or liquidation, on a parity with Series B Preferred
Stock, then such assets, or the proceeds thereof, shall be distributed among the
holders of Series B Preferred Stock and any such other shares ratably in
accordance with the respective amounts which would be payable on such shares of
Series B Preferred Stock and any such other shares if all amounts payable
thereon were paid in full. For the purposes of this Section 3, a consolidation
or merger of the Company with one or more corporations shall not be deemed to be
a dissolution or liquidation, voluntary or involuntary.
(B) Subject to the rights of the holders of shares of any series or class
or classes of stock ranking on a parity with or prior to Series B Preferred
Stock upon dissolution or liquidation, upon any dissolution or liquidation of
the Company, after payment shall have been made in full to the holders of Series
B Preferred Stock as provided in this Section 3, but not prior thereto, any
other series or class or classes of stock ranking junior to Series B Preferred
Stock upon dissolution or liquidation shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of Series B Preferred Stock
shall not be entitled to share therein.
4. RANKING OF SHARES.
Any shares of the Company shall be deemed to rank:
(A) prior to Series B Preferred Stock as to dividends or as to distribution
of assets upon dissolution or liquidation, if the holders of such class shall be
entitled to the receipt of dividends or of amounts distributable upon
dissolution or liquidation, as the case may be, in preference or priority to the
holders of Series B Preferred Stock;
(B) on a parity with Series B Preferred Stock as to dividends or as to
distribution of assets upon dissolution or liquidation, whether or not the
dividend rates, dividend payment dates, or redemption or liquidation prices per
share thereof be different from those of Series B Preferred Stock, if the
holders of such class of stock and Series B Preferred Stock shall be entitled to
the receipt of dividends or of amounts distributable upon dissolution or
liquidation, as the case may be, in proportion to their respective dividend or
liquidation amounts, as the case may be, without preference or priority one over
the other; and
(C) junior to Series B Preferred Stock as to dividends or as to the
distribution of assets upon dissolution or liquidation, if such shares shall be
Common Stock or if the holders of Series B Preferred Stock shall be entitled to
receipt of dividends or of amounts distributable upon dissolution or
liquidation, as the case may be, in preference or priority to the holders of
such shares.
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, or 8 hereof, to cause any or all of such
shares to be converted into shares of Common Stock. The number of shares of
Common Stock into which each share of the Series B Preferred Stock may be
converted shall be determined by dividing the Series B Liquidation Price in
effect at the time of conversion by the Series B Conversion Price (as
hereinafter defined) in effect at the time of conversion. The Series B
Conversion Price per share at which shares of Common Stock shall be initially
issuable upon conversion of any shares of Series B Preferred Stock shall be
$52.24(5), subject to adjustment 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, if certificated, the
certificate or certificates representing the shares of Series B Preferred Stock
being converted, duly assigned or endorsed for transfer to the Company (or
accompanied by duly executed stock powers relating thereto), or if
uncertificated, a duly executed stock power 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 or 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 Common Stock and 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 a confirmation of such conversion, if uncertificated, or
any new certificates which may be issued upon such conversion if certificated.
(C) Upon surrender, if certificated, of a certificate representing a share
or shares of Series B Preferred Stock for conversion, or if uncertificated, of a
duly executed stock power relating thereto, 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, if certificated, a certificate or certificates for,
or if uncertificated, confirmation of, 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 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, if certificated, a new certificate or certificates
representing the number of shares of Series B Preferred Stock which shall not
have been converted, or if uncertificated, confirmation of 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 if
certificated or confirmation if uncertificated or (ii) the commencement of
business on the second business day after the surrender of the certificate or
certificates, if certificated, or a duly executed stock power, if
uncertificated, for the shares of Series B Preferred Stock to be converted. On
and after the effective date of conversion, the person or persons entitled to
receive 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 of record on any date 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 Series B
Dividend Payment Date if such Series B Dividend Payment Date for such dividend
shall be on or subsequent to the effective date of conversion of such shares.
(E) The Company shall not be obligated to deliver to holders of Series B
Preferred Stock any fractional share or shares of Common Stock issuable upon any
conversion of such shares of Series B Preferred Stock, but in lieu thereof may
make a cash payment in respect thereof in any manner permitted by law.
(F) The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock or treasury Common Stock, solely for
issuance upon the conversion of shares of Series B Preferred Stock as herein
provided, 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.
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 November 27, 1995 (or on or
before November 27, 1995 if permitted by, and at the redemption price provided
in, paragraph (C) of this Section 6) at the following redemption prices per
share:
DURING THE
TWELVE MONTH
PERIOD
BEGINNING PRICE PER
NOVEMBER 28, SHARE
1993 105.5125% of Series B Liquidation Price in effect on date fixed
for redemption
1994 104.7250% "
1995 103.9375% "
1996 103.1500% "
1997 102.3625% "
1998 101.5750% "
1999 100.7875% "
and thereafter at 100% of the Series B Liquidation Price per share in effect on
the date fixed for redemption, plus, in each case (including in the case of
redemptions pursuant to paragraph (C) of this Section 6), an amount equal to all
accrued (whether or not accumulated) 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 (D) 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 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 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, if certificated,
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; (vi) the conversion rights of the shares to be redeemed, the
period within which conversion rights may be exercised, and the Series B
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
certificates, if certificated, for any shares so called for redemption and not
previously converted, or upon the date fixed for redemption if uncertificated,
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 (i) 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, or (ii) The Procter & Gamble Profit
Sharing Trust and Employee Stock Ownership Plan, as authorized by the Board of
Directors of the Company on May 7, 1990, and as amended from time to time
thereafter failing to receive a determination from the Internal Revenue Service
that it is a qualified plan within the meaning of Section 401(a) or is an
employee stock ownership plan as described in Section 4975(e)(7) of the Internal
Revenue Code of 1986, as amended, and in effect on the date shares of Series B
Preferred Stock are initially issued, then, in either such event, the Company
may, in its sole discretion and notwithstanding anything to the contrary in
paragraph (A) of this Section 6, elect to redeem such shares for the Series B
Liquidation Price in effect on the date fixed for redemption, plus, in each
case, an amount equal to all accrued (whether or not accumulated) and unpaid
dividends thereon to the date fixed for redemption. In the event the Company
terminates the employee stock ownership plan of The Procter & Gamble Profit
Sharing Trust and Employee Stock Ownership Plan or the portion thereof
associated with retiree medical benefits, the Company may, in its sole
discretion and notwithstanding anything to the contrary in paragraph (A) of this
Section 6, elect to redeem such shares at the redemption prices per share
provided in paragraph (A) of this Section 6.
(D) 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 purpose at the average of the high
and low reported sales price, or, in case no sale takes place on such day, the
average reported closing bid and asked price, in either case as reported on the
New York Stock Exchange Tape on the date of redemption, or if not listed or
admitted to trading on the New York Stock Exchange, in accordance with the
valuation methods provided in paragraph 9(F)(2).
7. REDEMPTION TO SATISFY OBLIGATIONS OF THE PROCTER & GAMBLE PROFIT SHARING
TRUST AND EMPLOYEE STOCK OWNERSHIP PLAN.
Unless otherwise provided by law, 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 (D) of
Section 6, at the Series B Liquidation Price per share in effect on the date
fixed for redemption plus all accrued (whether or not accumulated) 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
redemption, when and to the extent necessary for such holder to provide for
distributions required to be made under, or to satisfy an investment election
provided to participants in accordance with, The Procter & Gamble Profit Sharing
Trust and Employee Stock Ownership Plan, as the same may be amended, or any
successor plan (the "Plan").
8. CONSOLIDATION, MERGER, ETC.
(A) In the event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged solely for or changed,
reclassified or converted solely into shares of any successor or resulting
company (including the Company) that constitutes "qualifying employer
securities" with respect to a holder of Series B Preferred Stock within the
meanings of Section 4975(e)(8) 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 provision of law, and, if applicable, for a cash
payment in lieu of fractional shares, if any, then, in such event, the terms of
such consolidation or merger or similar transaction shall provide that the
shares of Series B Preferred Stock of such holder shall be submitted for and
shall become preferred shares of such successor or resulting company, having in
respect of such company insofar as possible the same powers, preferences and
relative, participating, optional or other special rights (including the
redemption rights provided by Sections 6, 7, and 8 hereof), and the
qualifications, limitations or restrictions thereon, that the Series B Preferred
Stock had immediately prior to such transaction; provided, however, that after
such transaction each share of the Series B Preferred Stock shall be
convertible, pursuant to the terms and conditions provided by Section 5 hereof,
into the 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 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 of qualifying employer securities 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). The rights of the Series B Preferred
Stock as preferred shares of such successor or resulting company shall
successively be subject to adjustments pursuant to Section 9 hereof after any
such transaction as nearly equivalent to the adjustments provided for by such
section prior to such transaction. The Company shall not consummate any such
merger, consolidation or similar transaction unless all the terms of this
paragraph 8(A) are complied with.
(B) In the event that the Company shall consummate any consolidation or
merger or similar transaction, however named, pursuant to which the outstanding
shares of Common Stock are by operation of law exchanged for or changed,
reclassified or converted into other shares or securities or cash or any other
property, or any combination thereof, other than any such consideration which is
constituted solely of qualifying employer securities (as referred to in
paragraph (A) of this Section 8) and cash payments, if applicable, in lieu of
fractional shares, outstanding shares of Series B Preferred Stock shall, without
any action on the part of the Company or any holder thereof (but subject to
paragraph (C) of this Section 8, be deemed 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 and 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 shares, securities, cash or other property (payable in like
kind) receivable by a holder of the number of shares of Common Stock into which
such shares of Series B Preferred Stock could have been converted immediately
prior to such transaction if such holder of Common Stock failed to exercise any
rights of election as to the kind or amount of shares, securities, cash or other
property receivable upon such transaction (provided that, if the kind or amount
of shares, securities, cash or other property receivable upon such transaction
is not the same for each non-electing share, then the kind and amount of shares,
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 non-electing shares).
(C) In the event the Company shall enter into any agreement providing for
any consolidation or merger or similar transaction described in paragraph (B) of
this Section 8, then the Company shall as soon as practicable thereafter (and in
any event at least ten (10) business days before consummation of such
transaction) give notice of such agreement and the material terms thereof to
each holder of Series B Preferred Stock and each such holder shall have the
right to elect, by written notice to the Company, to receive, upon consummation
of such transaction (if and when such transaction is consummated), from the
Company or the successor of the Company, in redemption and retirement of such
Series B Preferred Stock, a cash payment equal to the Series B Liquidation Price
in effect on the date set for redemption plus all accrued (whether or not
accumulated) and unpaid dividends. 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.
9. ANTI-DILUTION ADJUSTMENTS.
(A)(1) Subject to the provisions of paragraph 9(D), 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 or (ii)
subdivide or combine the outstanding shares of Common Stock into a greater or
lesser number of shares, in each case whether by reclassification of shares,
recapitalization of the Company (excluding a recapitalization or
reclassification effected by a merger or consolidation to which Section 8 hereof
applies) or otherwise, then, in such event, each share of Series B Preferred
Stock will automatically, without any action on the part of the holder thereof
or the Company, become that number of shares of Series B Preferred Stock (the
"Non-dilutive Share Amount") equal to an amount which is 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 outstanding immediately before such event. An adjustment
pursuant to this paragraph 9(A)(1) shall be effective upon payment of such
dividend or distribution in respect of the Common Stock and in the case of a
subdivision or combination shall become effective immediately as of the
effective date thereof. Concurrently with the automatic adjustment pursuant to
this paragraph 9(A)(1), the Series B Conversion Price, the Series B Liquidation
Price and the Series B Preferred Dividend Rate of all shares of Series B
Preferred Stock shall be adjusted by dividing the Series B Conversion Price, the
Series B Liquidation Price and the Series B Preferred Dividend Rate,
respectively, in effect immediately before the event by the Non-dilutive Share
Amount determined pursuant to this paragraph 9(A)(1).
(2) The Company and the Board of Directors shall each use its best efforts
to take all necessary steps or to take all actions as are necessary or
appropriate for implementation of the automatic adjustment provided in paragraph
9(A)(1). In the event for any reason the Company is precluded from giving full
effect to the automatic adjustment provided in paragraph 9(A)(1), then no such
automatic adjustment shall occur, but instead the Series B Conversion Price
shall automatically be adjusted by dividing the Series B Conversion Price in
effect immediately before the event by the Non-dilutive Share Amount determined
pursuant to paragraph 9(A)(1), and the Series B Liquidation Price and the Series
B Preferred Dividend Rate will not be adjusted. An adjustment to the Series B
Conversion Price made pursuant to this paragraph 9(A)(2) shall be given effect,
upon payment of such a dividend or distribution, as of the record date for the
determination of shareholders entitled to receive such dividend or distribution
(on a retroactive basis) and in the case of a subdivision or combination shall
become effective immediately as of the effective date thereof. If subsequently
the Company is able to give full effect to the automatic adjustment as provided
in paragraph 9(A)(1), then such automatic adjustment will proceed in accordance
with the provisions of paragraph 9(A)(1) and the adjustment in the Series B
Conversion Price as provided in this paragraph 9(A)(2) will automatically be
reversed and nullified prospectively.
(B)(1) Subject to the provisions of paragraph 9(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, 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, in such event, each share of Series B Preferred Stock will
automatically, without any action on the part of the holder thereof or the
Company, become that number of shares of Series B Preferred Stock (the
"Non-dilutive Share Amount") equal to an amount which is a fraction the
numerator of which is 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 and the denominator of which is 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. Concurrently with the automatic adjustment pursuant to this
paragraph 9(B)(1), the Series B Conversion Price, the Series B Liquidation Price
and the Series B Preferred Dividend Rate of all shares of Series B Preferred
Stock shall be adjusted by dividing the Series B Conversion Price, the Series B
Liquidation Price and the Series B Preferred Dividend Rate, respectively, in
effect immediately before such issuance of rights or warrants by the
Non-dilutive Share Amount determined pursuant to this paragraph 9(B)(1).
(2) The Company and the Board of Directors shall each use its best efforts
to take all necessary steps or to take all actions as are necessary or
appropriate for implementation of the automatic adjustment provided in paragraph
9(B)(1). In the event for any reason the Company is precluded from giving full
effect to the automatic adjustment provided in paragraph 9(B)(1), then no such
automatic adjustment shall occur, but instead the Series B Conversion Price
shall automatically be adjusted by dividing the Series B Conversion Price in
effect immediately before such issuance of rights or warrants by the
Non-Dilutive Share Amount determined pursuant to paragraph 9(B)(1), and the
Series B Liquidation Price and Series B Preferred Dividend Rate will not be
adjusted. If subsequently the Company is able to give full effect to the
automatic adjustment as provided in paragraph 9(B)(1), then such automatic
adjustment will proceed in accordance with the provisions of paragraph 9(B)(1)
and the adjustment in the Series B Conversion Price as provided in this
paragraph 9(B)(2) will automatically be reversed and nullified prospectively.
(C)(1) Subject to the provisions of paragraph 9(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 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, then, in such event, each
share of Series B Preferred Stock will automatically, without any action on the
part of the holder thereof or the Company, become that number of shares of
Series B Preferred Stock (the "Non-dilutive Share Amount") equal to an amount
which is a fraction the numerator of which is the product of (a) the number of
shares of Common Stock outstanding immediately before such Extraordinary
Distribution 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 record date with
respect to an Extraordinary Distribution 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, and the denominator 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 record
date with respect to an Extraordinary Distribution, or on the applicable
expiration date (including all extensions thereof) of any tender offer which is
a Pro Rata Repurchase, or on the date of purchase with respect to any Pro Rata
Repurchase which is not a tender offer, as the case may be, minus (ii) the Fair
Market Value of the Extraordinary Distribution or the aggregate purchase price
of the Pro Rata Repurchase, as the case may be. 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 Series B 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. Concurrently with the automatic adjustment pursuant to this paragraph
9(C)(1), the Series B Conversion Price, the Series B Liquidation Price and the
Series B Preferred Dividend Rate of all shares of Series B Preferred Stock shall
be adjusted by dividing the Series B Conversion Price, the Series B Liquidation
Price and the Series B Preferred Dividend Rate, respectively, in effect
immediately before such Extraordinary Distribution or Pro Rata Repurchase by the
Non-dilutive Share Amount determined pursuant to this paragraph 9(C)(1).
(2) The Company and the Board of Directors shall each use its best efforts
to take all necessary steps or to take all actions as are necessary or
appropriate for implementation of the automatic adjustment provided in paragraph
9(C)(1). In the event for any reason the Company is precluded from giving full
effect to the automatic adjustment provided in paragraph 9(C)(1), then no such
automatic adjustment shall occur, but instead the Series B Conversion Price
shall automatically be adjusted by dividing the Series B Conversion Price in
effect immediately before such Extraordinary Distribution or Pro Rata Repurchase
by the Non-dilutive Share Amount, and the Series B Liquidation Price and the
Series B Preferred Dividend Rate will not be adjusted. If subsequently the
Company is able to give full effect to the automatic adjustment as provided in
paragraph 9(C)(1), then such automatic adjustment will proceed in accordance
with the provisions of paragraph 9(C)(1) and the adjustment in the Series B
Conversion Price as provided in this paragraph 9(C)(2) will automatically be
reversed and nullified prospectively.
(D) Notwithstanding any other provisions of this Section 9, the Company
shall not be required to make (i) any adjustment of the number of issued shares
of Series B Preferred Stock, the Series B Conversion Price, the Series B
Liquidation Price or the Series B Preferred Dividend Rate unless such adjustment
would require an increase or decrease of at least one percent (1%) in the number
of shares of Series B Preferred Stock outstanding, or, (ii) if no additional
shares of Series B Preferred Stock are issued, any adjustment of the Series B
Conversion Price unless such adjustment would require an increase or decrease of
at least one percent (1%) in the Series B 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%) of the number of Series B Preferred Shares
outstanding or, if no additional shares of Series B Preferred Stock are being
issued, an increase or decrease of at least one percent (1%) of the Series B
Conversion Price, whichever the case may be.
(E) 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 appropriate adjustment to the number of
shares of Series B Preferred Stock outstanding or the Series B Conversion Price
pursuant to the foregoing provisions of this Section 9, the Board of Directors
of the Company may, in its sole discretion, consider whether such action is of
such a nature that some type of equitable adjustment should be made in respect
of such transaction. If in such case the Board of Directors of the Company
determines that some type of adjustment should be made, an equitable adjustment
not repugnant to law and for the protection of the conversion rights of the
Series B Preferred Stock 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 some type of adjustment should be made
pursuant to the foregoing provisions of this paragraph 9(E), and, if so, as to
what adjustment should be made and when, shall be final and binding on the
Company and all shareholders of the Company. The Company shall be entitled to
make such additional adjustments, 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 the Company or any recapitalization
of the Company shall not be taxable to holders of the Common Stock.
(F) For purposes of this Appendix B, the following definitions shall apply:
(1) "Extraordinary Distribution" shall mean any dividend or other
distribution (effected while any of the shares of Series B Preferred Stock are
outstanding) of (i) 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 twelve (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 record date for determining the shareholders
entitled to receive such Extraordinary Distribution and (ii) any shares of
capital stock of the Company (other than shares of Common Stock), other
securities of the Company (other than securities of the type referred to in
paragraph (B) of this Section 9), evidences of indebtedness of the Company or
any other person or any other property (including shares of any subsidiary of
the Company), or any combination thereof. The Fair Market Value of an
Extraordinary Distribution for purposes of paragraph (C) of this Section 9 shall
be the sum of the Fair Market Value of such Extraordinary Distribution plus the
aggregate amount of any cash dividends or distributions which are not
Extraordinary Distributions made during such twelve month period and not
included in the calculation of any previous adjustment pursuant to paragraph (C)
of this Section 9.
(2) "Fair Market Value" shall mean, as to shares of Common Stock or any
other class of capital stock or securities of the Company or any other issuer
which are publicly traded, the average of the Current Market Prices (as
hereinafter defined) of such shares or securities for each day of the Adjustment
Period (as hereinafter defined). "Current Market Price" of publicly traded
shares of Common Stock or any other class of capital stock or other security of
the Company or any other issuer for a day shall mean the last reported sales
price, regular way, or, in case no sale takes place on such day, the average
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 on each trading day during the Adjustment Period. "Adjustment Period"
shall mean the period of five (5) consecutive trading days, selected by the
Board of Directors of the Company, during the twenty (20) trading days
preceding, and including, the date as of which the Fair Market Value of a
security is to be determined. The "Fair Market Value" of any security 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, if no such investment banking or
appraisal firm is in the good faith judgment of the Board of Directors of the
Company available to make such determination, as determined in good faith by the
Board of Directors of the Company.
(3) "Pro Rata Repurchase" shall mean any purchase of shares of Common Stock
by the Company or any subsidiary thereof, whether for cash, shares of capital
stock of the Company, other securities of the Company, evidences of indebtedness
of the Company or any other person or any other property (including shares of a
subsidiary of the Company), or any combination thereof, effected while any of
the shares of Series B Preferred Stock are outstanding, pursuant to any tender
offer or exchange offer subject to Section 13(e) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), or any successor provision of law, or
pursuant to any other offer available to substantially all holders of Common
Stock; provided, however, that no purchase of shares by the Company or any
subsidiary thereof made in open market transactions shall be deemed a Pro Rata
Repurchase. For purposes of this paragraph 9(F), 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 shall
have determined are reasonably designed to prevent such purchases from having a
material effect on the trading market for the Common Stock.
(G) Whenever an adjustment increasing the number of shares of Series B
Preferred Stock outstanding is required pursuant to this Appendix B, the Board
of Directors shall take such action as is necessary so that a sufficient number
of shares of Series B Preferred Stock are designated with respect to such
increase resulting from such adjustment. Whenever an adjustment to the Series B
Conversion Price, the Series B Liquidation Price or the Series B Preferred
Dividend Rate of the Series B Preferred Stock is required pursuant to this
Appendix B, the Company shall forthwith place on file with the transfer agent
for the Common Stock and the Series B Preferred Stock if there be one, and with
the Treasurer of the Company, a statement signed by the Treasurer or Assistant
Treasurer of the Company stating the adjusted Series B Conversion Price, Series
B Liquidation Price and Series B Preferred Dividend Rate determined as provided
herein. 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 number of shares of Series B Preferred
Stock outstanding, the Series B Conversion Price, the Series B Liquidation Price
or the Series B Preferred Dividend Rate, the Company shall mail a notice thereof
and of the then prevailing number of shares of Series B Preferred Stock
outstanding, the Series B Conversion Price, the Series B Liquidation Price and
the Series B Preferred Dividend Rate to each holder of shares of Series B
Preferred Stock.
10. MISCELLANEOUS.
(A) All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of receipt thereof
or three (3) business days after the mailing thereof if sent by registered mail
(unless first-class mail shall be specifically permitted for such notice under
the terms of this Appendix B) with postage prepaid, addressed: (i) if to the
Company, to its office at One Procter & Gamble Plaza, Cincinnati, Ohio 45202
(Attention: Treasurer) or to the transfer agent for the Series B Preferred
Stock, or other agent of the Company designated as permitted by this Appendix B
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 Appendix B means the Company's
Common Stock without par value, as the same exists at the date of filing of the
Amendment to the Company's Amended Articles of Incorporation first designating
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 without par value, or from without 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 Appendix B, 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 anti-dilution provisions contained in Section 9
hereof shall apply in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock, and the provisions of Sections 1
through 8 and 10 of this Appendix B 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 of the Series B
Preferred or Common Stock or other Securities by the holder thereof to a
subsequent holder resulting 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 or other documentation representing such shares, or
such payment, to the address of such holder shown on the records of the Company.
(E) The Company may appoint, and from time to time discharge and change, a
transfer agent for the Series B Preferred Stock. Upon any such appointment or
discharge of a transfer agent, the Company shall send notice thereof by
first-class mail, postage prepaid, to each holder of record of Series B
Preferred Stock.
(5) As a result of two two-for-one stock splits on the Common Stock
effective August 22, 1997 and May 21, 2004 and the Smucker transaction
effective June 1, 2002, the Conversion Price, Liquidation Price and
Preferred Dividend Rate were all adjusted in accordance with the terms
of paragraph 9(A)(1) of this Appendix B to be as follows: Conversion
Price -- $12.96; Liquidation Price -- $12.96; Preferred Dividend Rate
-- $1.022 per share per annum, with a corresponding change in the
quarterly dividend payment. (This footnote is not a part of the
Company's Amended Articles of Incorporation but is included to provide
up-to-date information on the status of Series B ESOP Convertible Class
A Preferred Stock.)