EXHIBIT 4.5
STATEMENT OF RESOLUTION
OF
SERIES B 8% CUMULATIVE PERPETUAL PREFERRED STOCK
OF
EEX CORPORATION
PURSUANT to the provisions of Article 2.13 of the Texas Business
Corporation Act, the undersigned corporation (the "Company") makes the following
statement:
I. The name of the Company is EEX Corporation.
II. Set forth below is a copy of the resolution of the Board of Directors
of the Company (the "Resolution") establishing and designating, and determining
the preferences, limitations and relative rights of, the Company's Series B 8%
Cumulative Perpetual Preferred Stock, no par value per share. This resolution
was adopted by all necessary action on the part of the corporation. Date of
adoption was 12/18/98:
"RESOLVED, that pursuant to the authority vested in the Board of Directors
of the Company by Article IV of the Restated Articles of Incorporation, a series
of Preferred Stock of the Company be, and it hereby is, created out of the
authorized but unissued shares of the Preferred Stock of the Company, such
series to be designated "Series B 8% Cumulative Perpetual Preferred Stock" (the
"Series B Preferred Stock"), to consist of 3,000,000 shares, no par value per
share, of which the preferences and relative and other rights, and the
qualifications, limitations or restrictions thereof, shall be (in addition to
those set forth in the Restated Articles of Incorporation) as follows:
1. Number. The number of shares constituting the Series B Preferred Stock
shall be 3,000,000; provided, however, 1,500,000 of such 3,000,000 shares may
only be issued from time to time as dividends on the Series B Preferred Stock
pursuant to Section 3 of this Statement of Resolution.
2. Definitions. Unless the context otherwise requires, when used herein
the following terms shall have the meaning indicated.
"Affiliate" means with respect to any Person, any other Person directly, or
indirectly through one or more intermediaries, controlling, controlled by or
under common control with such Person. For purposes of this definition, the
term "control" (and correlative terms "controlling," "controlled by" and "under
common control with") means possession of the power, whether by contract, equity
ownership or otherwise, to direct the policies or management of a Person.
"Articles" means the Restated Articles of Incorporation of the Company.
"Beneficially Own" or "Beneficial Ownership" is defined in Rules 13d-3 and
13d-5 of the Exchange Act, but without taking into account any contractual
restrictions or limitations on voting or other rights.
"Board" means the Board of Directors of the Company.
"Business Combination" means (i) any consolidation, merger, share exchange
or similar business combination transaction involving the Company with any
Person or (ii) the sale, assignment conveyance, transfer, lease or other
disposition by the Company of all or substantially all of its assets.
"Business Day" means any day except Saturday, Sunday and any day which
shall be a legal holiday or a day on which banking institutions in Houston,
Texas or New York City, New York generally are authorized or required by law or
other governmental actions to close.
"Capital Stock" means (i) with respect to any Person that is a corporation
or company, any and all shares, interests, participations or other equivalents
(however designated) of capital or capital stock of such Person and (ii) with
respect to any Person that is not a corporation or company, any and all
partnership or other equity interests of such Person.
"Change of Control" shall mean any event constituting (a) the consummation
of any Business Combination except where (i) the shareholders of the Company
immediately prior to such Business Combination own (in substantially the same
proportion relative to each other as such shareholders owned the Common Stock
immediately prior to such consummation) (x) forty percent (40%) or more of the
Voting Stock of the surviving entity on both a Modified Non Diluted Basis and a
Modified Fully Diluted Basis immediately after such Business Combination, and
(y) forty percent (40%) or more of the outstanding common stock of the surviving
entity on both a Modified Non Diluted Basis and a Modified Fully Diluted Basis
immediately after such Business Combination, (ii) the members of the Board
immediately prior to the entering into the agreement relating to such Business
Combination constitute at least a majority of the Board or the board of
directors of the surviving entity immediately after such Business Combination,
with no agreements or arrangements in place immediately after such consummation
that would result in the members of the Board immediately prior to the entering
into the agreement relating to such Business Combination ceasing to constitute
at least a majority of the Board or the board of directors of the surviving
entity and (iii) no Non-Financial Person or Group of Non-Financial Persons is
the Beneficial Owner of 20% or more of the total outstanding Voting Stock or
common stock of the surviving entity and no Financial Person or Group of
Financial Persons is the Beneficial Owner of 35% or more of the total
outstanding Voting Stock or common stock of the surviving entity or (b) any Non-
Financial Person or Group of Non-Financial Persons acquiring Beneficial
Ownership of 20% or more of the total outstanding Voting Stock or Common Stock
of the Company or any Financial Person or Group of Financial Persons acquiring
Beneficial Ownership of 35% or more of the total outstanding Voting Stock or
Common Stock of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules
and regulations thereunder.
"Common Stock" means the Company's common stock, par value $.01 per share,
and any Capital Stock for or into which such Common Stock hereafter is
exchanged, converted, reclassified or recapitalized by the Company or pursuant
to an agreement or Business Combination to which the Company is a party.
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"Common Stock Equivalents" means (without duplication with any other Common
Stock or common stock, as the case may be, or Common Stock Equivalents) rights,
warrants, options, convertible securities or exchangeable securities,
exercisable for or convertible or exchangeable into, directly or indirectly,
Common Stock, or common stock, as the case may be, whether at the time of
issuance or upon the passage of time or the occurrence of some future event,
including the Warrants.
"Company" means EEX Corporation, a Texas corporation.
"Dividend Payment Date" is defined in Section 3(A).
"Dividend Period" is defined in Section 3(A).
"Dividend Rate" means a rate of interest equal to (i) prior to the Dividend
Reset Date, eight percent (8%) per annum and (ii) on or after the Dividend Reset
Date, the Dividend Reset Rate determined pursuant to Section 4.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor statute, and the rules and regulations promulgated thereunder.
"Financial Person" means any Person that (i) is, or holds itself out as
being, engaged primarily in the business of investing, reinvesting, owning,
holding or trading in securities, and (ii) together with its Affiliates is not
engaged in (x) any significant activities other than financial services,
insurance or investment activities or (y) directly or indirectly through
Affiliates, in any industrial activities, including the oil and gas and energy
industry.
"Group" means a group as contemplated by Section 13(d)(3) of the Exchange
Act.
"Holder" means a holder of record of the Series B Preferred Stock.
"Issue Date" means with respect to any shares of Series B Preferred Stock
the original date of issuance of such shares of Series B Preferred Stock.
"Junior Securities" means Capital Stock that, with respect to dividends and
distributions upon Liquidation, ranks junior to the Series B Preferred Stock.
"Liquidation" means the voluntary or involuntary liquidation, dissolution
or winding up of the Company; provided, however, that a merger or share exchange
shall not be deemed a Liquidation nor shall the sale of assets not requiring
shareholder approval be deemed to be a Liquidation.
"Liquidation Preference" is defined in Section 6.
"Majority of the Series B Preferred Stock" means more than 50% of the
outstanding shares of Series B Preferred Stock.
"Market Price" means, with respect to a particular security, on any given
day, the last reported sale price regular way or, in case no such reported sale
takes place on such day, the
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average of the last closing bid and asked prices regular way, in either case on
the principal national securities exchange on which the applicable securities is
listed or admitted to trading, or if not listed or admitted to trading on any
national securities exchange, (i) the closing sale price for such day reported
by the NASDAQ Stock Market if such security is traded over-the-counter and
quoted in the NASDAQ Stock Market, or (ii) if such security is so traded, but
not so quoted, the average of the closing reported bid and asked prices of such
security as reported by the NASDAQ Stock Market or any comparable system, or
(iii) if such security is not listed on the NASDAQ Stock Market or any
comparable system, the average of the closing bid and asked prices as furnished
by two members of the National Association of Securities Dealers, Inc. selected
from time to time by the Company for that purpose. If such security is not
listed and traded in a manner that the quotations referred to above are
available for the period required hereunder, the Market Price per share of
Common Stock shall be deemed to be the fair value per share of such security as
determined in good faith by the Board of Directors of the Company.
"Modified Fully-Diluted Basis" shall mean a calculation based on the then
outstanding shares of Voting Stock or common stock, as the case may be, plus all
shares of Voting Stock or common stock acquirable pursuant to, or constituting,
Common Stock Equivalents, but excluding 50% of the Voting Stock or common stock
acquirable pursuant to the then outstanding Warrants.
"Modified Non-Diluted Basis" shall mean a calculation based on the then
outstanding shares of Voting Stock or common stock, as the case may be, and
without giving effect to outstanding Common Stock Equivalents, but including (i)
50% of the shares of Common Stock then acquirable upon exercise of the then
outstanding Warrants and (ii) the number of shares of common stock equal to (a)
the aggregate Market Price as of the date of such Business Combination of all
shares of common stock acquirable upon exercise of all outstanding employee
stock options of the relevant entity that have an exercise price of less than
the Market Price of common stock as of the date of such Business Combination
less the aggregate exercises price of all such options divided by (b) the Market
Price of common stock as of the date of such Business Combination.
"Non-Financial Person" means any Person that is not a Financial Person.
"Notice of Redemption" is defined in Section 7(B)(i).
"Parity Securities" means Capital Stock that, with respect to dividends or
distributions upon Liquidation, is pari passu with the Series B Preferred Stock.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, limited liability company, joint
venture, joint stock company, government (or an agency or political subdivision
thereof) or other entity of any kind.
"Profits" means earnings and profits of the Company and its Subsidiaries
computed in accordance with Section 312 of the Code.
"Purchase Agreement" means the Purchase Agreement dated as of December
, 1998 among the Company and the purchasers named therein pursuant to which
1,500,000 shares of
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Series B Preferred Stock and certain other securities are to be issued by the
Company, including all schedules and exhibits thereto.
"Purchasers" means collectively, Warburg, Pincus Equity Partners, L.P.,
Warburg, Pincus Equity Partners I, C.V. Warburg, Pincus Equity Partners II, C.V.
and Warburg, Pincus Equity Partners III, C.V.
"Record Date" is defined in Section 3(A).
"Redemption Date" is defined in Section 7(B)(i).
"Redemption Notice" is defined in Section 7(B)(i).
"Redemption Price" is defined in Section 7(A).
"Rights Agreement" means the Rights Agreement dated as of September 10,
1996 between the Company and Harris Trust Company of New York, a New York trust
company, as amended.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations promulgated thereunder.
"Senior Securities" means Capital Stock that, with respect to dividends or
distributions upon Liquidation, ranks senior to the Series B Preferred Stock.
"Series B Preferred Stock" means the Series B 8% Cumulative Perpetual
Preferred Stock of the Company or successor preferred stock as contemplated by
Section 5(C)(ii)(A).
"Stated Value" is an amount equal to $100.00 per share of Series B
Preferred Stock.
"Statement of Resolution" means this Statement of Resolution of the Series
B Preferred Stock.
"Subsidiary" of a Person means (i) a corporation, a majority of whose stock
with voting power, under ordinary circumstances, to elect directors is at the
time of determination, directly or indirectly, owned by such Person or by one or
more Subsidiaries of such Person, or (ii) any other entity (other than a
corporation) in which such Person or one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has a least a
majority ownership interest.
"TBCA" means the Texas Business Corporation Act, as amended, or any
successor statute or other legislation.
"Voting Stock" of a Person means Capital Stock of such Person of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to vote in the election of the board of directors,
managers or trustees of such Person.
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"Warrants" means the warrants to purchase up to 21,000,000 shares of Common
Stock, subject to certain conditions, at an initial exercise price of $12 per
share (as may be adjusted from time to time as set forth therein) which were
issued to the purchasers named in the Purchase Agreement pursuant to the
Purchase Agreement.
The foregoing definitions will be equally applicable to both the singular
and plural forms of the defined terms.
3. Dividends and Distributions.
(A) Subject to the prior preferences and other rights of any Senior
Securities, the holders of the Series B Preferred Stock shall be entitled
to receive out of the assets of the Company legally available for that
purpose, dividends at the Dividend Rate, and, except as provided in Section
3(C), no more, to be paid in accordance with the terms of this Section 3.
Such dividends shall be cumulative from the Issue Date and shall be payable
in arrears, when and as declared by the Board, on March 31, June 30,
September 30 and December 31 of each year (each such date being herein
referred to as a "Dividend Payment Date"), commencing on March 31, 1999.
The period from the Issue Date to the next Dividend Payment Date and
quarterly period between consecutive Dividend Payment Dates shall
hereinafter be referred to as a "Dividend Period." Each such dividend
shall be paid to the holders of record of the Series B Preferred Stock as
their names appear on the share register of the Company on the
corresponding Record Date. As used above, the term "Record Date" means,
with respect to the dividend payable on March 31, June 30, September 30 and
December 31, respectively, of each year, the preceding March 15, June 15,
September 15 and December 15, or such other record date designated by the
Board with respect to the dividend payable on such respective Dividend
Payment Date not exceeding 30 days preceding such Dividend Payment Date.
Dividends on account of arrears for any past Dividend Periods may be
declared and paid, together with any accrued but unpaid interest thereon to
and including the date of payment, at any time, without reference to any
Dividend Payment Date, to holders of record on a date designated by the
Board, not exceeding 30 days preceding the payment date thereof, as may be
fixed by the Board.
(B) In the event that dividends on the Series B Preferred Stock are to
be paid in cash in accordance with Sections 3(E) or 3(F), and full cash
dividends are not paid or made available to the holders of all outstanding
shares of the Series B Preferred Stock and of any Parity Securities, and
funds available shall be insufficient to permit payment in full in cash to
all such holders of the preferential amounts to which they are then
entitled, the entire amount available for payment of cash dividends shall
be distributed among the holders of the Series B Preferred Stock and of any
Parity Securities ratably in proportion to the full amount to which they
would otherwise be respectively entitled, any remainder not paid in cash to
the Holders shall cumulate as provided in Section 3(C) below.
(C) If, on any Dividend Payment Date, the Company fails to pay
dividends, then until the dividends that were scheduled to be paid on such
date are paid, such dividends shall cumulate and shall accrue additional
dividends to and including the date of payment thereof at the Dividend Rate
then in effect plus, with respect to any dividends
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payable after the Dividend Reset Date, 2% per annum (but in no event higher
than the highest amount permitted under applicable law), compounded
quarterly, whether or not earned or declared, payable only in cash
(notwithstanding Section 3(E) below) with additional dividends thereon for
each succeeding full Dividend Period during which such dividends shall
remain unpaid. Unpaid dividends for any period less than a full Dividend
Period shall cumulate on a day-to-day basis and shall be computed on the
basis of a 360-day year.
(D) So long as any shares of the Series B Preferred Stock shall be
outstanding, the Company shall not and shall cause its Subsidiaries not to
(i) declare or pay any dividend whatsoever, whether in cash, property or
otherwise, set aside any cash or property for the payment of dividends, or
make any other distribution on any Junior Securities, (ii) declare or pay
any dividend whatsoever, whether in cash, property or otherwise, set aside
any cash or property for the payment of dividends, or make any other
distribution on any Parity Securities, unless declared and paid pro rata
with the Series B Preferred Stock in proportion to the full amount to which
they would otherwise be respectively entitled or (iii) repurchase, redeem
or otherwise acquire or set aside any cash or property for the repurchase
or redemption of any Junior Securities or Parity Securities, unless in each
such case all dividends to which the holders of the Series B Preferred
Stock shall have been entitled for all previous Dividend Periods shall have
been paid or declared and a sum of money sufficient for the payment thereof
shall have been set apart.
(E) Subject to the election of a Holder provided for in Section 3(F)
below and subject to Section 3(C) above, from the Issue Date through and
including the Dividend Reset Date, the Company shall pay on each Dividend
Payment Date accrued dividends, at its election, in cash, shares of Series
B Preferred Stock or shares of Common Stock. Such election shall be made
on or prior to the earlier of the date of declaration of such dividend or
the applicable record date for such dividend, with prompt notice thereafter
being given by the Company to the holders of the Series B Preferred Stock
of such election. Notwithstanding the foregoing, in the event that the
Company shall have declared or paid cash dividends on the Common Stock
during a Dividend Period, the Company shall pay on the Dividend Payment
Date for such Dividend Period accrued dividends solely in cash. The number
of shares of Series B Preferred Stock to be issued in circumstances when
dividends are paid with additional shares of Series B Preferred Stock will
equal the cash amount of the dividend payable, divided by $100, rounded to
the nearest full share, up or down, after taking into account all shares of
Series B Preferred Stock owned by the Holder provided that if the resulting
fractional share held by such Holder equals one-half of a share of Series B
Preferred Stock, such fractional share shall be rounded up to the nearest
full share. The number of shares of Common Stock to be issued in
circumstances when dividends are paid with shares of Common Stock will
equal the cash amount of the dividend payable, divided by the lesser of (i)
the Market Price of Common Stock as of the last trading day immediately
preceding the payment date or (ii) the average Market Price of Common Stock
for the twenty (20) trading days immediately preceding the payment date,
rounded up to the nearest full share. After the Dividend Reset Date, the
Company shall pay dividends on the Series B Preferred Stock only in cash,
and the Company shall be mandatorily required to pay such dividends on the
scheduled Dividend Payment Date to the fullest extent permitted by law or,
if not then permitted by law, then as soon thereafter as is legally
permitted. The
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Company shall be required to pay all accrued but unpaid dividends as of the
Dividend Reset Date in cash on the next succeeding Dividend Payment Date to
the fullest extent permitted by law or, if not then permitted by law, then
as soon thereafter as is legally permitted.
(F) On any Dividend Payment Date occurring on any December 31 before
the Dividend Reset Date, Holders of a Majority of the Series B Preferred
Stock may elect, by written notice to the Company on or before five (5)
business days preceding the applicable Record Date, to have the Company pay
in cash up to the full amount of the dividend payable on such date less any
cash dividends paid with respect to the previous three Dividend Periods, or
the portion thereof as shall not exceed the Profits of the Company. To the
extent that the Company has not determined the Profits of the Company for
the fiscal year ending on December 31 of such year as of the applicable
Record Date and has determined in good faith that it is not reasonably
certain that it will have Profits sufficient to pay the cash dividends
requested in the aggregate by the Holders of the Series B Preferred Stock,
the Company may defer the payment of such dividend to the earlier of the
date of such determination or March 31 of the year following the year in
which such dividend was to be paid but such deferred cash portion of the
dividend shall accrue additional dividends thereon at the Dividend Rate.
To the extent that the aggregate cash dividends requested to be paid by all
Holders exceeds the Profits of the Company as so determined, such aggregate
cash dividends will be reduced and each Holder requesting to be paid in
cash shall be entitled to receive his pro rata portion of the aggregate
cash dividends paid based on the dollar amount of cash dividends requested
to be paid by each Holder and the remainder shall be paid at the election
of the Company in either shares of Series B Preferred Stock or shares of
Common Stock as provided in Section 3(E). In the event of the approval by
the Board of an agreement providing for a Business Combination, a Holder
may elect to have the Company suspend payment of dividends, which shall
continue to accrue as provided in Section 3(C) at the Dividend Rate. If
the proposed Business Combination is consummated within 180 days of the
date of approval by the Board of the agreement providing for such Business
Combination, at the request of Holders of a Majority of the Series B
Preferred Stock, all accrued but unpaid dividends will be paid in cash by
the Company upon consummation of such Business Combination or if the
proposed Business Combination is not consummated within 180 days of the
date of approval by the Board of the agreement providing for such Business
Combination, all accrued but unpaid dividends (including dividends that
would have been payable with respect to unpaid dividends in Series B
Preferred Stock) will be paid by the Company promptly after expiration of
such 180 day period at the Company's election in cash, shares of Series A
Preferred Stock or shares of Common Stock in accordance with Section 3(E).
4. Remarketing Procedures.
(A) Certain Definitions.
Capitalized terms not defined in this Section 4 shall have the meanings
specified elsewhere herein. As used herein, the following terms shall have the
following meanings, unless the context otherwise requires:
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"Existing Holder" shall mean a Person who is a record owner of shares of
Series B Preferred Stock as of the time in question.
"Maximum Applicable Rate" shall mean 18% per annum (but in no event higher
than the highest amount permitted under applicable law).
"Minimum Applicable Rate" shall mean 4% per annum.
"Potential Holder" shall mean a prospective purchaser of shares of Series B
Preferred Stock contacted by, or who has contacted, the Remarketing Agent or the
Company in connection with the Remarketing and who shall have executed and
delivered to the Remarketing Agent an agreement, prepared by the Remarketing
Agent, whereby such prospective purchaser shall have agreed that it will be
bound by the Remarketing Procedures and that any Bid placed by it shall
constitute an irrevocable offer by it to purchase the shares subject to such Bid
or such lesser number of shares of Series B Preferred Stock as it shall be
required to purchase as a result of such Remarketing Procedures and containing
such other matters as the Remarketing Agent shall specify that are not
inconsistent with the Remarketing Procedures.
"Qualifying Change of Control" shall mean a Change of Control if the Market
Price of one share of Common Stock immediately prior to the consummation of such
Change of Control does not exceed the Threshold Amount.
"Remarketing" shall mean the operation of the procedures set forth in this
Section 4.
"Remarketing Agent" shall mean a nationally recognized investment banking
firm or commercial bank selected by the Company (i) whose long-term unsecured
debt is rated either BBB- or better by Standard & Poor's Corporation or any
successor thereto or baa3 or better by Moody Investors Service, Inc. or any
successor thereto, (ii) that has agreed to serve hereunder as Remarketing Agent,
and (iii) notice of which selection and agreement has been given to the Existing
Holders at least 15 Business Days prior to the Submission Deadline.
"Remarketing Procedures" shall mean the procedures set forth in this
Section 4.
"Submission Deadline" shall mean the earlier of (i) 10:00 A.M., Houston,
Texas time on [seventh anniversary of the Closing Date] or, if such date is not
a Business Day, then at such time on the next succeeding Business Day or (ii)
10:00 A.M., Houston, Texas time on the thirtieth day following a Qualifying
Change of Control.
"Threshold Amount" shall mean $5.375 (provided, however, if the Company
after [Closing Date] shall (i) declare a dividend or make a distribution on its
Common Stock in shares of Common Stock, (ii) subdivide or reclassify the
outstanding shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify the outstanding Common Stock into a smaller number of
shares, then such amount shall be adjusted proportionately) and increased by 8%
per annum, compounded quarterly, from [Closing Date] to the day immediately
preceding the consummation of the Change of Control.
(B) Orders by Existing Holders and Potential Holders.
(i) Prior to the Submission Deadline, the Remarketing Agent shall
contact Potential Holders to determine the number of shares, if any, of
Series B Preferred Stock
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that each such Potential Holder offers to purchase, at a price equal to the
Stated Value per share of Series B Preferred Stock plus accrued and unpaid
dividends thereon as of the Dividend Reset Date (the "Reset Price"), if the
Dividend Reset Rate is not less than the rate per annum specified by such
Potential Holder.
(ii) Prior to the Submission Deadline, each Existing Holder may submit
to the Remarketing Agent in writing information as to:
(1) the number of shares, if any, of Series B Preferred Stock
held by such Existing Holder that such Existing Holder desires to
continue to hold without regard to the Dividend Reset Rate;
(2) the number of shares, if any, of Series B Preferred Stock
held by such Existing Holder that such Existing Holder desires to
continue to hold if the Dividend Reset Rate is not less than the rate
per annum specified by such Existing Holder; and/or
(3) the number of shares, if any, of Series B Preferred Stock
held by such Existing Holder that such Existing Holder desires to sell
at the Reset Price without regard to the Dividend Reset Rate.
For purposes hereof, the communication to the Remarketing Agent of the
information referred to in this Section 4(B)(ii) is hereinafter referred to
as an "Order" and each Existing Holder and each Potential Holder placing an
Order is hereinafter referred to as a "Bidder"; an Order containing the
information referred to in clause (1) of this Section 4(B)(ii) is
hereinafter referred to as a "Hold Order"; an Order containing the
information contained in clause (2) of this Section 4(B)(ii) is hereinafter
referred to as a "Bid"; and an Order containing the information referred to
in clause (3) of this Section 4(B)(ii) is hereinafter referred to as a
"Sell Order".
(C) Deemed Submission of Orders by Existing Holders. If an Order or
Orders covering all of the shares of Series B Preferred Stock held by an
Existing Holder is not submitted to the Remarketing Agent prior to the
Submission Deadline, the Remarketing Agent shall deem a Sell Order to have
been submitted on behalf of such Existing Holder covering the number of
shares of Series B Preferred Stock held by such Existing Holder and not
subject to any Order submitted to the Remarketing Agent.
(D) Determination of Sufficient Clearing Bids, Winning Bid Rate and
Dividend Reset Rate.
(i) Promptly following the Submission Deadline, the Remarketing
Agent shall assemble all Orders submitted to it (each such Order as
submitted or deemed submitted being hereinafter referred to
individually as a "Submitted Hold Order", a "Submitted Bid" or a
"Submitted Sell Order", as the case may be, or as a "Submitted Order")
and shall determine:
(1) the excess, if any, of the total number of outstanding shares
of Series B Preferred Stock over the number of shares of Series B
Preferred Stock
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that are the subject of Submitted Hold Orders (such excess being
hereinafter referred to as the "Available Shares");
(2) from the Submitted Orders whether the number of outstanding
shares of Series B Preferred Stock that are the subject of Submitted
Bids by Potential Holders and Existing Holders specifying a rate not
higher than the Maximum Applicable Rate is equal to or exceeds the
number of outstanding shares of Series B Preferred Stock that are the
subject of Submitted Sell Orders, and if such excess or such equality
exists, such Submitted Bids are hereinafter referred to collectively
as "Sufficient Clearing Bids"); and
(3) if Sufficient Clearing Bids exist, the lowest rate specified
in the Submitted Bids (the "Winning Bid Rate") which if:
(a) each Submitted Bid from Existing Holders specifying such
Winning Bid Rate and all other Submitted Bids from Existing
Holders specifying lower rates were accepted, would entitle such
Existing Holders to continue to hold the outstanding shares of
Series B Preferred Stock that are the subject of such Submitted
Bids; and
(b) each Submitted Bid from Potential Holders specifying
such Winning Bid Rate and all other Submitted Bids from Potential
Holders specifying lower rates were accepted, would entitle such
Potential Holders to purchase the shares of Series B Preferred
Stock that are the subject of such Submitted Bids;
would result in such Existing Holders described in subclause (a)
above continuing to hold an aggregate number of outstanding shares of
Series B Preferred Stock that, when added to the number of shares of Series
B Preferred Stock to be purchased by such Potential Holders described in
subclause (b) above, would equal not less than the Available Shares.
(ii) Promptly after the Remarketing Agent has made the determinations
pursuant to Section 4(D)(i), the Remarketing Agent shall advise the Company
of the Dividend Reset Rate as follows:
(1) if Sufficient Clearing Bids exist, the Dividend Reset Rate
shall be equal to the Winning Bid Rate so determined; provided,
however, that the Winning Bid Rate shall not exceed the Maximum
Applicable Rate;
(2) if Sufficient Clearing Bids do not exist, the Dividend Reset
Rate shall be equal to the Maximum Applicable Rate;
(3) if all of the outstanding shares of Series B Preferred Stock
are subject to Submitted Hold Orders, the Dividend Reset Rate shall be
equal to the Minimum Applicable Rate.
(E) Acceptance and Rejection of Orders and Allocation of Shares.
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Based on the determinations made pursuant to Section 4(D)(i), Submitted
Sell Orders shall be accepted or rejected, and the Remarketing Agent shall take
such other action, as set forth below:
(i) if Sufficient Clearing Bids have been made in the Remarketing,
subject to the provisions of Section 4(E)(iii), Submitted Bids and
Submitted Sell Orders shall be accepted or rejected in the following order
of priority and all other Submitted Bids shall be rejected:
(1) the Submitted Sell Orders of each Existing Holder shall be
accepted and the Submitted Bids of each Existing Holder specifying any
rate that is higher than the Winning Bid Rate shall be rejected, thus
requiring each such Existing Holder to sell the outstanding shares of
Series B Preferred Stock subject to such Submitted Sell Orders or
Submitted Bids;
(2) the Submitted Bids of each Existing Holder specifying any
rate that is lower than the Winning Bid Rate shall be accepted, thus
entitling each such Existing Holder to continue to hold the
outstanding shares of Series B Preferred Stock subject to such
Submitted Bids;
(3) the Submitted Bids of each Potential Holder specifying any
rate that is lower than the Winning Bid Rate shall be accepted and
such Potential Holder shall purchase the number of shares of Series B
Preferred Stock subject to such Submitted Bids;
(4) the Submitted Bids of each Existing Holder specifying a rate
that is equal to the Winning Bid Rate shall be accepted, thus
entitling such Existing Holder to continue to hold the outstanding
shares of Series B Preferred Stock subject to such Submitted Bids,
unless the number of outstanding shares of Series B Preferred Stock
subject to all such Submitted Bids placed by Existing Holders shall be
greater than the excess of the Available Shares over the number of
shares of Series B Preferred Stock subject to Submitted Bids described
in clauses (2) and (3) of this Section 4(E)(i) (the "Remaining
Shares"). In such event such Existing Holder shall be required to
sell shares of Series B Preferred Stock subject to such Submitted
Bids, but only in an amount equal to the difference between (1) the
number of outstanding shares of Series B Preferred Stock then held by
such Existing Holder subject to such Submitted Bids and (2) the
product of (x) the number of Remaining Shares and (y) a fraction, the
numerator of which shall be the number of outstanding shares of Series
B Preferred Stock held by such Existing Holder subject to such
Submitted Bids and the denominator of which shall be the number of
outstanding shares of Series B Preferred Stock subject to such
Submitted Bids made by all such Existing Holders that specified a rate
equal to the Winning Bid Rate; and
(5) the Submitted Bids of each Potential Holder specifying a rate
that is equal to the Winning Bid Rate shall be accepted, but only in
an amount equal to the product of (i) the difference between the
Available Shares and the number of outstanding shares of Series B
Preferred Stock subject to the Submitted Bids described in clauses
(2), (3) and (4) of this Section 4(E)(i) and (ii) a fraction, the
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numerator of which shall be the number of outstanding shares of Series
B Preferred Stock subject to such Submitted Bids of such Potential
Holder and the denominator of which shall be the number of outstanding
shares of Series B Preferred Stock subject to such Submitted Bids made
by all such Potential Holders that specified a rate equal to the
Winning Bid Rate.
(ii) Subject to the provisions of Section 9(E)(iii), if Sufficient
Clearing Bids have not been made in the Remarketing, Submitted Bids and
Submitted Sell Orders shall be accepted or rejected in the following order
of priority and all other Submitted Bids shall be rejected:
(1) the Submitted Bids of each Existing Holder specifying any
rate that is equal to or lower than the Maximum Applicable Rate shall
be accepted, thus entitling such Existing Holder to continue to hold
the outstanding shares of Series B Preferred Stock subject to such
Submitted Bids;
(2) the Submitted Bids of each Potential Holder specifying any
rate that is equal to or lower than the Maximum Applicable Rate shall
be accepted, thus entitling such Existing Holder to purchase the
outstanding shares of Series B Preferred Stock subject to such
Submitted Bids; and
(3) the Submitted Sell Orders of each Existing Holder shall be
accepted, and the Submitted Bids of each Existing Holder specifying
any rate that is higher than the Maximum Applicable Rate shall be
rejected, thus requiring each such Existing Holder to sell the
outstanding shares of Series B Preferred Stock subject to such
Submitted Sell Orders and Submitted Bids, in both cases only in an
amount equal to the difference between (A) the number of outstanding
shares of Series B Preferred Stock then held by such Existing Holder
subject to such Submitted Sell Orders or Submitted Bids and (B) the
product of (x) the difference between the Available Shares and the
aggregate number of outstanding shares of Series B Preferred Stock
subject to Submitted Bids described in clauses (1) and (2) of this
Section 4(E)(ii) and (y) a fraction, the numerator of which shall be
the number of outstanding shares of Series B Preferred Stock held by
such Existing Holder subject to such Submitted Sell Orders or
Submitted Bids and the denominator of which shall be the number of
outstanding shares of Series B Preferred Stock subject to all such
Submitted Sell Orders and Submitted Bids.
(iii) If, as a result of the procedures described in this Section 4,
any Existing Holder would be entitled or required to sell, or any Potential
Holder would be entitled or required to purchase, a fraction of a share of
Series B Preferred Stock, the Remarketing Agent shall, in such manner as,
in its sole discretion, it shall determine, round up or down the number of
shares of Series B Preferred Stock to be sold or purchased by any Existing
Holder or Potential Holder of such Series B Preferred Stock so that the
number of shares of Series B Preferred Stock sold or purchased by each
Existing Holder or Potential Holder shall be whole shares of Series B
Preferred Stock.
(F) Closing of Remarketing. If any shares of Series B Preferred Stock are
to be sold pursuant to the Remarketing Procedures, then such sale shall be
consummated at the offices of the Company at 10:00 a.m. Eastern Standard Time on
the Business Day next succeeding the
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Submission Deadline (the "Dividend Reset Date"). At such closing, all Existing
Holders that are to sell shares pursuant to the Remarketing Procedures shall
deliver against payment in same day funds the appropriate stock certificates
representing the shares of Series B Preferred Stock to be sold duly endorsed or
with appropriate stock powers. If any purchaser fails to purchase shares
required to be purchased on the Dividend Reset Date (other than as a result
solely of a breach by the applicable Existing Holder of its obligations
hereunder) and, if the Remarketing Agent does not purchase such shares in lieu
of such purchaser, then the Dividend Reset Rate shall be the Maximum Applicable
Rate notwithstanding the other Remarketing Procedures.
(G) Certain Matters relating to the Remarketing Agent. If there is no
Person serving as Remarketing Agent as of the Submission Deadline or if the
Remarketing Agent resigns or otherwise refuses or is unable to act as
Remarketing Agent hereunder, then the Dividend Reset Rate shall be the Maximum
Applicable Rate.
5. Voting Rights. The Holders shall have the following voting rights with
respect thereto:
(A) Each share of Series B Preferred Stock shall entitle the holder
thereof to the voting rights required by applicable law.
(B) Until the Dividend Reset Date, Holders of shares of the Series B
Preferred Stock shall be entitled to vote upon all matters upon which
holders of Common Stock have the right to vote, and Holders shall have that
number of votes on all such matters per share of Series B Preferred Stock
as is equal to the quotient (but in no event more than 5.334) of (i)
8,000,000 divided by (ii) the number of outstanding shares of Series B
Preferred Stock (provided, however, if the Company after [Closing Date]
shall (i) declare a dividend or make a distribution on its Common Stock in
shares of Common Stock, (ii) subdivide or reclassify the outstanding shares
of Common Stock into a greater number of shares, or (iii) combine or
reclassify the outstanding Common Stock into a smaller number of shares,
then such quotient shall be adjusted proportionately) as of the record date
for the determination of the shareholders entitled to vote on such matters,
or, if no such record date is established as of the date such vote is taken
or any written consent of shareholders is solicited, such votes to be
counted together with all other shares of capital stock having general
voting powers and not separately as a class. Fractional votes shall not,
however, be permitted and any fractional voting rights resulting from the
above formula shall be rounded up to the nearest whole number.
(C) In addition to the voting rights accorded to the Holders of the
Series B Preferred Stock in Sections 4(A) and 4(B), the consent of the
Holders of at least a Majority of the Series B Preferred Stock, voting
separately as a single class, in person or by proxy, either in writing
without a meeting or at an annual or a special meeting of shareholders
called for the purpose, shall be necessary to (i) amend, by way of merger
or otherwise, the Articles, so as to (A) affect adversely the rights,
preferences or privileges of Holders or (B) authorize, create or issue any
shares of (1) Parity Securities that (x) adversely affect the rights of the
Series B Preferred Stock to vote separately as a class on any matter or (y)
with other existing Parity Securities, have an aggregate liquidation
preference in excess of $150.0 million or (2) Senior Securities (or amend
the provisions of any existing class of Capital Stock to make such class of
Capital Stock a class of (1)
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Parity Securities that (x) adversely affect the rights of the Series B
Preferred Stock to vote separately as a class on any matter or (y) with
other existing Parity Securities, have an aggregate liquidation preference
in excess of $150.0 million or (2) Senior Securities) or (ii) consummate
any Business Combination (A) unless (x) the Holders of the Series B
Preferred Stock shall have the right to receive or continue to hold in the
surviving corporation in such Business Combination the same number of
shares of preferred stock with substantially the same rights, preferences
and privileges, as correspond to the Series B Preferred Stock held
immediately prior to such Business Combination (provided, however, that if
the Company or the surviving corporation becomes a Subsidiary of another
corporation in such Business Combination and the holders of Common Stock
became entitled to receive Capital Stock in such other corporation, then
the holders of the Series B Preferred Stock shall be entitled to receive
such shares of preferred stock with substantially the same rights,
preferences and privileges in such other corporation) and (y) such
surviving or other corporation, as the case may be, has immediately after
the consummation of such Business Combination no Senior Securities or
Parity Securities (other than Parity Securities having an aggregate
liquidation preference not in excess of $150.0 million and which do not
adversely affect the rights of the Series B Preferred Stock to vote
separately as a class on any matter) and (B) unless such Business
Combination would not result in a breach of any obligations of the Company
under this Statement of Resolution. In all cases where the Holders have the
right to vote separately as a class, all such Holders shall be entitled to
one vote for each share held by them.
(D) Whenever, at any time or times, dividends payable on any of the
Series B Preferred Stock shall be in arrears in an aggregate amount
equivalent to six (6) full quarterly dividends, there shall be vested in
the Holders, voting as one class and with one vote for each share, the
right to elect two directors of the Company. Such right of the Holders to
vote for the election of two directors may be exercised at any annual
meeting or at any special meeting called for such purpose, or at any
adjournment thereof until all arrearages and dividends on the outstanding
shares of Series B Preferred Stock shall have been paid in full or declared
and funds sufficient for the payment thereof deposited in trust and when so
paid or provided for, then all rights of the Holders under this Section
5(D) shall cease. So long as such right to vote continues, the Secretary
of the Company may call, and upon written request of the Holders of ten
percent (10%) or more of the outstanding Series B Preferred Stock addressed
to him at the principal office of the Company, shall call a special meeting
of the Holders for the election of such two directors as provided herein.
Such meeting shall be held within fifty (50) days after delivery of such
request to such Secretary, at the place and upon the notice provided by law
and in the Bylaws of the Company for the holding of meetings of its
shareholders. If at any such meeting or any adjournment thereof the
Holders of at least a majority of the then outstanding shares of Series B
Preferred Stock then entitled to vote in such election shall be present or
represented by proxy, then, by vote of the Holders of at least the majority
of all such shares of Series B Preferred Stock present or represented in
such meeting, the then authorized number of directors of the Company shall
be increased by two and the Holders of such shares of Series B Preferred
Stock shall be entitled to elect such two additional directors. Directors
so elected shall serve until the next annual meeting or until their
successors shall be elected and shall qualify; provided, however,
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that whenever all arrearages and dividends on all outstanding shares of
Series B Preferred Stock shall have been paid or declared and funds
sufficient for the payment thereof deposited in trust, the term of the
office of the persons so elected as directors shall forthwith terminate,
and the number of the whole Board shall be reduced accordingly. In case of
any vacancy occurring among the directors so elected the remaining director
who shall have been so elected may appoint a successor to hold office for
the unexpired term of the director whose place shall be vacant. If both
directors so elected by the Holders shall cease to serve as directors
before their term shall expire, the Holders may, at a special meeting of
such Holders called as provided above, elect successors to hold office for
the unexpired terms of the directors whose places shall be vacant. In any
vote under this Section 5(D), each share of Series B Preferred Stock shall
be entitled to vote.
6. Liquidation Preference. In the event of any Liquidation, after payment
or provision for payment by the Company of the debts and other liabilities of
the Company and the liquidation preference of any Senior Securities, each Holder
shall be entitled to receive an amount in cash for each share of the then
outstanding Series B Preferred Stock held by such Holder equal to the Stated
Value per share plus an amount equal to all accrued but unpaid dividends
thereon, whether or not earnings are available in respect of such dividends or
such dividends have been declared, to and including the date full payment is
tendered to the Holders with respect to such Liquidation and no more (such
amount being referred to herein as the "Liquidation Preference") before any
distribution shall be made to the holders of any Junior Securities upon the
Liquidation of the Company. In case the assets of the Company available for
payment to the Holders are insufficient to pay the full Liquidation Preference
on all outstanding shares of the Series B Preferred Stock and all outstanding
Parity Securities in the amounts to which the holders of such shares are
entitled, then the entire assets of the Company available for payment to the
Holders will be distributed ratably among the Holders of the Series B Preferred
Stock and the holders of the Parity Securities, based upon the aggregate amount
due on such shares upon Liquidation. Written notice of any Liquidation of the
Company, stating a payment date and the place where the distributable amounts
shall be payable, shall be given by mail, postage prepaid, not less than 30 days
prior to the payment date stated therein, to the Holders of record of the Series
B Preferred Stock, if any, at their respective addresses as the same shall
appear on the books of the Company.
7. Redemptions.
(A) The Series B Preferred Stock may be redeemed by the Company at any
time to the extent of funds legally available therefor, in whole but not in
part, in the manner provided for in Section 7, at a redemption price per
share equal to the Stated Value plus accrued but unpaid dividends to and
including the date the redemption price is paid, payable in same day funds,
(the "Redemption Price").
(B) Notice of redemption (the "Notice of Redemption") of the Series B
Preferred Stock shall be sent by or on behalf of the Company, by first
class mail, postage prepaid, to the Holders of record of the Series B
Preferred Stock at their respective addresses as they shall appear on the
records of the Company, not less than forty-five (45) days nor more than
ninety (90) days prior to the date fixed for redemption (the "Redemption
Date") (1) notifying such holders of the election of the Company to redeem
such shares, of the Redemption Date and the Redemption Price, and (2)
stating the place
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or places at which the Series B Preferred Stock shall, upon presentation
and surrender of the certificates evidencing such shares, be redeemed.
(C) If Notice of Redemption shall have been given as hereinbefore
provided, each Holder shall be entitled to all preferences, relative and
other rights accorded by this resolution (including the right to receive
dividends) and the TBCA until and including the Redemption Date. If the
Company shall default in making payment on the Redemption Date, then each
Holder shall be entitled to all preferences, relative and other rights
accorded by this resolution (including the right to receive dividends) and
the TBCA until and including the date (the "Actual Redemption Date") when
the Company actually makes payment of the Redemption Price to the Holders.
From and after the Redemption Date or, if the Company shall default in
making payment or delivery as aforesaid, the Actual Redemption Date, the
Series B Preferred Stock shall no longer be deemed to be outstanding, and
all rights of the Holders shall cease and terminate, except the right of
the Holders, upon surrender of certificates therefor, to receipt of amounts
to be paid hereunder.
8. Limitations on Series B Preferred Stock. No share or shares of
Series B Preferred Stock the Company acquires through redemption, option,
exchange or otherwise will be reissued, and all such shares will be canceled,
retired and eliminated from the shares of Series B Preferred Stock which the
Company will be authorized to issue. The Company will not issue any further
shares of Series B Preferred Stock other than pursuant to Section 3.
9. Waivers. With the written consent of Holders of a Majority of the
Series B Preferred Stock, the obligations of the Company and the rights of the
Holders under this Statement of Resolution may be waived (either generally or in
a particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely). Upon the effectuation of each such
waiver, the Company will promptly give written notice thereof to the Holders who
have not previously consented thereto in writing.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
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I, Joseph T. Leary, being the Vice President, Finance and Treasurer of EEX
Corporation, do hereby execute this Statement of Resolution, declaring and
certifying that the facts herein stated are true, and accordingly have hereunto
set my hand this 7th day of January, 1999.
/s/ J. T. Leary
------------------------------
Joseph T. Leary
Vice President and Treasurer
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