EXHIBIT 3.3
GUARANTEE OF BP AMOCO p.l.c.
BP AMOCO p.l.c., a public limited company duly organized and existing under
the laws of England and Wales (herein called "BP", which term includes any
successor person to BP AMOCO p.l.c.), hereby irrevocably and unconditionally
guarantees to each Holder (as hereinafter defined) at any time of any shares
(each, a "Share") of the $2.80 Preference Stock, par value $1.00 per share
(the "Preference Stock"), of Atlantic Richfield Company, a Delaware
corporation ("ARCO"), the due and punctual payment in full as and when due
(except to the extent paid by ARCO) of (i) dividends on the Preference Stock,
to the extent declared by the ARCO Board of Directors out of funds legally
available for the payment of dividends, (ii) the redemption price of any Share
that has been properly called for redemption, (iii) in the event of a
voluntary or involuntary liquidation of ARCO, the amount (if any) to which the
Holder of any Share is entitled under Section 3 of the Preference Stock Terms
(as hereinafter defined) and (iv) any additional amounts required to be paid
to the holder of any Share pursuant to the Preference Stock Terms (each, a
"Guaranteed Payment" and, collectively, the "Guaranteed Payments"). This
Guarantee is continuing, irrevocable, unconditional and absolute. BP's
obligation to make a Guaranteed Payment may be satisfied by direct payment of
the required amounts by BP to the Holders or by causing ARCO to pay such
amounts to the Holders. In case of the failure of ARCO to make any such
payment, BP hereby agrees to cause any such payment to be made punctually when
and as the same shall become due and payable and as if such payment were made
by ARCO.
Section 1. Certain Definitions. For the purposes of this Guarantee, the
following terms shall have the following respective meanings:
(a) "BP Depositary Shares" means American depositary shares of BP, each
representing the right to receive six BP Ordinary Shares.
(b) "BP Ordinary Shares" means ordinary shares, of nominal value $0.25 each,
of BP.
(c) "Holder" means any person or entity that is a holder of record of
Preference Stock.
(d) "Liabilities" means (i) all unsecured liabilities of BP (including,
without limitation, liabilities for borrowed money), whether existing on the
date hereof or hereafter created, incurred, assumed or guaranteed, whether or
not matured, which would be shown in the liabilities section of a balance
sheet prepared in accordance with generally accepted accounting principles in
the United Kingdom, other than shareholders' interest; and (ii) all
liabilities under guarantees.
(e) "Preference Stock Terms" means the preferences, qualifications,
privileges, limitations, restrictions and other special or relative rights of
the Preference Stock set forth in Article IV, Section C, of the Restated
Certificate of Incorporation of ARCO, as it may be amended from time to time
in accordance with the provisions thereof.
All accounting terms not otherwise defined herein shall have the meanings
assigned to them in accordance with (i) if used in relation to ARCO, generally
accepted accounting principles in the United States and (ii) if used in
relation to BP, generally accepted accounting principles in the United
Kingdom, and all computations provided for herein shall be made in accordance
with such applicable generally accepted accounting principles, consistently
applied.
Section 2. Terms of Guarantee.
(a) Obligations Unconditional. BP hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of any provision of this Guarantee, the Preference Stock, the
certificates representing any Shares or the Preference Stock Terms, the
absence of any action to enforce the same, any waiver or consent by the Holder
of any Share with respect to any provisions thereof, the rendering of any
judgment against ARCO or any action to enforce the same or any other action,
inaction, event or circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(b) Waiver of Certain Rights. BP hereby waives diligence, presentment,
demand for payment, filing of claims with a court in the event of
amalgamation, arrangement, reorganization, receivership, merger, bankruptcy or
liquidation of ARCO, any right to require any suit, action or proceeding first
against ARCO, any protest or notice with respect to such Preference Stock or
the obligations evidenced hereby and any and all demands whatsoever, and
covenants that, except as otherwise specifically provided herein, this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Preference Stock, the Preference Stock Terms and
this Guarantee.
(c) Obligations Not Affected. The obligations, covenants, agreements and
duties of BP under this Guarantee shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(i) the release or waiver, by operation of law or otherwise, of the
performance or observance by ARCO of any express or implied agreement,
covenant, term or condition relating to the Preference Stock to be
performed or observed by ARCO;
(ii) the extension of time for the payment by ARCO of all or any portion
of the dividends, distributions, redemption price, liquidation preference
or any other amounts payable under the Preference Stock Terms or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Preference Stock;
(iii) any failure, omission, delay or lack of diligence on the part of
any Holder to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the Preference Stock Terms, or
any action on the part of ARCO granting indulgence or extension of any
kind;
(iv) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, ARCO or
any of the assets of ARCO;
(v) any invalidity of, or defect or deficiency in, any Shares; or
(vi) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred.
There shall be no obligation of the Holders to give notice to, or obtain any
consent of, BP with respect to the happening of any of the foregoing.
(d) Holders May Proceed Directly Against BP. This Guarantee is a guarantee
of payment and not of collection. A Holder may enforce this Guarantee directly
against BP, and BP waives any right or remedy to require that any action be
brought against ARCO or any other person or entity before proceeding against
BP. Subject to all waivers herein contained, the right of a holder so to
enforce this Guarantee directly shall be without prejudice to the Holders'
right at the Holders' option to proceed against ARCO, whether by separate
action or by joinder. BP agrees that, except as expressly provided in Section
3 hereof, this Guarantee shall not be discharged except by payment of the
Guaranteed Payments in full.
(e) Subrogation. BP shall be subrogated to all (if any) rights of the
Holders against ARCO in respect of any amounts paid to the Holders by BP under
this Guarantee and shall have the right to waive payment of any amount of
dividends, distributions or other amounts in respect of which payment has been
made to the Holders by BP, provided, however, that BP shall not (except to the
extent required by mandatory provisions of law) exercise any rights which it
may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of a payment under this Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amounts shall be paid to BP in violation of the preceding
sentence, BP agrees to pay over such amount to the Holders.
(f) Independent Obligations. BP acknowledges that its obligations hereunder
are independent of the obligations of ARCO with respect to the Preference
Stock and that BP shall be liable as principal and sole debtor under this
Guarantee to make Guaranteed Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in clauses (i) through
(vi), inclusive, of Section 2(c) hereof.
Section 3. Termination. The obligations of BP pursuant to this Guarantee
shall terminate and be of no further force and effect: (a) with respect to any
Holder which has exercised his right to convert any of his Shares into
BP Ordinary Shares, deliverable in the form of BP Depositary Shares, upon such
conversion, but only with respect to such converted Shares; (b) upon the
redemption of all Shares then outstanding and the satisfaction of all payment
obligations of ARCO under the Preferred Stock Terms, whether by ARCO or by BP
under this Guarantee, in respect of such redemption; or (c) upon full payment
of the amounts payable to the Holders upon any voluntary or involuntary
liquidation of ARCO; provided, however, that this Guarantee shall continue to
be effective or shall be reinstated, as the case may be, if at any time any
Holder of Shares must restore payment of any amounts paid under the Preference
Stock or under this Guarantee for any reason whatsoever. BP agrees to
indemnify each Holder and hold it harmless from and against any loss it may
suffer in such circumstances.
Section 4. Ranking. BP covenants and agrees that for all purposes (including
any bankruptcy, insolvency, or reorganization of BP) this Guarantee
constitutes an unsecured obligation of BP ranking pari passu with all
Liabilities, except to the extent any Liability is expressly made senior or
subordinate to this Guarantee. Nothing contained in this Section 4 or
elsewhere in this Guarantee or in the Preference Stock Terms is intended to or
shall impair, as between BP and the Holders, the obligation of BP, which is
absolute and unconditional, to pay the Holders any Guaranteed Payment under
this Guarantee as and when the same shall become due and payable in accordance
with terms of this Guarantee, nor shall anything herein or therein prevent the
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Guarantee.
Section 5. Miscellaneous.
(a) Third Party Beneficiaries. All of BP's representations, warranties and
obligations under this Guarantee shall be directly enforceable by the Holders
from time to time of Shares. Each Holder is an intended third-party
beneficiary of this Guarantee.
(b) Form of Guarantee. The failure of any certificate for Shares to have
affixed thereto or to be accompanied by any form of this Guarantee shall not
in any way impair or limit the validity or enforceability of this Guarantee on
the terms set forth herein.
(c) Successors and Assigns. All guarantees and agreements contained in this
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of BP and shall inure to the benefit of the Holders. Except as
permitted by Section 5(d) hereof, BP shall not assign its rights or delegate
its obligations hereunder without the affirmative vote or written consent of
the Holders of not less than two-thirds of the Preference Shares then
outstanding.
(d) Amendments. BP shall not, without the affirmative vote or written
consent of the Holders of not less than two-thirds of the Shares then
outstanding, amend any provision of this Guarantee in any material respect
adverse to the Holders.
(e) Merger, Consolidation or Sale of Assets. BP, without the consent of any
Holders, may merge, consolidate or combine with or into another entity
(whether by scheme or arrangement or any similar transaction) or may permit
another entity to merge, consolidate with or into BP (whether by scheme or
arrangement or any similar transaction), and may sell, transfer or lease all
or substantially all of BP's assets to another entity, if and only if such
entity assumes all obligations and liabilities of BP under this Guarantee.
(f) Notices. Any notice, request or other communication required or
permitted to be given hereunder to BP shall be given in writing by delivering
the same against receipt therefor by registered mail, hand delivery or
facsimile transmission (confirmed by registered mail), addressed to BP, as
follows (and if so given, shall be deemed given when mailed or upon receipt of
facsimile confirmation, if sent by facsimile transmission):
BP Amoco p.l.c.
Brittanic House
1 Finsbury Circus
London EC2M 7BA
England
Attention: Company Secretary
Facsimile: (011) 44-207-496-4630
Any notice, request or other communication required or permitted to be given
hereunder to the Holders shall be given by BP in the same manner as notices
may sent by ARCO to the Holders under the Preference Stock Terms.
(g) Guarantees Not Separately Transferable. This Guarantee is solely for the
benefit of the Holders and is not separately transferable from the Shares.
(h) Governing Law. This Guarantee shall be governed by and construed and
interpreted in accordance with the laws of England and Wales.
(i) Severability. In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(j) Headings. This Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
IN WITNESS WHEREOF, BP has caused this Guarantee to be duly executed as a deed
this 1st day of February, 2001
BP AMOCO p.l.c.
/s/ J.G.S. Buchanan
By: _________________________________
J. Buchanan
Director
/s/ P.J. Clayton
By: _________________________________
P.J. Clayton
Deputy Secretary