<PAGE>
SECOND QUARTER - 1996
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
-------------------------
[X] Quarterly Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the period ended June 30, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from __________ to __________
-------------------------
Commission file number 1-11767
I.R.S. Employer Identification Number 36-3431962
RYERSON TULL, INC.
(a Delaware Corporation)
2621 West 15th Place
Chicago, Illinois 60608
Telephone: (312) 762-2121
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes No X
--- ---
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: 5,220,000 shares of the
Company's Class A Common Stock and 34,000,000 shares of the Company's Class B
Common Stock (each $1.00 par value per share) were outstanding as of August 5,
1996.
<PAGE>
PART I. FINANCIAL INFORMATION
------------------------------
ITEM 1. FINANCIAL STATEMENTS
RYERSON TULL, INC.
AND SUBSIDIARY COMPANIES
(A majority-owned subsidiary of Inland Steel Industries, Inc.)
CONSOLIDATED STATEMENT OF OPERATIONS (UNAUDITED)
================================================================================
<TABLE>
<CAPTION>
Dollars in Millions (except per share data)
-----------------------------------------------
Three Months Ended Six Months Ended
June 30 June 30
------------------ --------------------
1996 1995 1996 1995
------ ------- -------- --------
<S> <C> <C> <C> <C>
NET SALES $607.5 $631.7 $1,232.8 $1,284.0
------ ------ -------- --------
OPERATING COSTS AND EXPENSES
Cost of goods sold 529.6 546.0 1,072.5 1,111.0
Selling, general and
administrative expenses 39.7 39.1 79.9 79.0
Depreciation and amortization 5.5 5.6 11.1 11.0
------ ------ -------- --------
Total 574.8 590.7 1,163.5 1,201.0
------ ------ -------- --------
OPERATING PROFIT 32.7 41.0 69.3 83.0
General corporate expense,
net of income items .1 .8 (.6) 1.2
Interest and other expense on debt 1.1 .7 1.7 1.4
------ ------ -------- --------
INCOME BEFORE INCOME TAXES 31.5 39.5 68.2 80.4
PROVISION FOR INCOME TAXES 12.6 15.5 26.9 31.9
------ ------ -------- --------
NET INCOME $ 18.9 $ 24.0 $ 41.3 $ 48.5
====== ====== ======== ========
PRO FORMA PRIMARY EARNINGS PER SHARE
OF COMMON STOCK (Note 4) $ .48 $ .61 $ 1.05 $ 1.24
====== ====== ======== ========
OPERATING DATA
- --------------
SHIPMENTS (Tons in Thousands) 634.8 592.7 1,273.4 1,219.8
</TABLE>
See notes to consolidated financial statements
- 1 -
<PAGE>
RYERSON TULL, INC.
AND SUBSIDIARY COMPANIES
(A majority-owned subsidiary of Inland Steel Industries, Inc.)
CONSOLIDATED STATEMENT OF CASH FLOWS (UNAUDITED)
================================================================================
<TABLE>
<CAPTION>
Dollars in Millions
-------------------
Six Months Ended
June 30
----------------
1996 1995
------- ------
<S> <C> <C>
OPERATING ACTIVITIES
Net income $ 41.3 $ 48.5
------- ------
Adjustments to reconcile net income to net cash
provided from (used for) operating activities:
Depreciation and amortization 11.1 11.0
Deferred employee benefit cost 2.3 (13.9)
Deferred income taxes 2.3 3.0
Change in: Receivables (20.0) (50.1)
Inventories (49.6) (23.6)
Other assets (3.4) (.5)
Accounts payable 15.9 10.6
Payables to related companies 9.8 5.4
Accrued liabilities (4.7) (2.8)
------- ------
Net adjustments (36.3) (60.9)
------- ------
Net cash provided from (used for) operating activities 5.0 (12.4)
------- ------
INVESTING ACTIVITIES
Capital expenditures (6.7) (6.5)
Investments in and advances to joint ventures, net (.2) -
Proceeds from sales of assets 1.3 .6
------- ------
Net cash used for investing activities (5.6) (5.9)
------- ------
FINANCING ACTIVITIES
Sale of Series A common stock 77.1 -
Long-term debt retired (.8) (.7)
Dividends paid (152.1) -
Changes in notes receivable from related companies 68.8 16.5
------- ------
Net cash provided from (used for) financing activities (7.0) 15.8
------- ------
Net decrease in cash and cash equivalents (7.6) (2.5)
Cash and cash equivalents - beginning of year 53.6 2.5
------- ------
Cash and cash equivalents - end of period $ 46.0 $ -
======= ======
SUPPLEMENTAL DISCLOSURES
Cash paid during the period for:
Interest (net of amount capitalized) $ .8 $ 1.6
Income taxes, net 23.8 23.8
Non cash investing and financing activities:
Investments and advances increased by capital
contribution of Inland Steel Industries, Inc. 18.9 -
Note payable issued as dividend 293.8 -
</TABLE>
See notes to consolidated financial statements
-2-
<PAGE>
RYERSON TULL, INC.
AND SUBSIDIARY COMPANIES
(A majority-owned subsidiary of Inland Steel Industries, Inc.)
CONSOLIDATED BALANCE SHEET
================================================================================
<TABLE>
<CAPTION>
Dollars in Millions
---------------------------------------
ASSETS June 30, 1996 December 31, 1995
- ------ ----------------- -----------------
(unaudited)
<S> <C> <C> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 46.0 $ 53.6
Receivables 263.8 243.8
Inventories - principally at LIFO 312.4 262.8
Notes receivable from related company - 68.8
Deferred income taxes 13.1 15.6
------ ------
Total current assets 635.3 644.6
INVESTMENTS AND ADVANCES 19.1 -
PROPERTY, PLANT AND EQUIPMENT
Valued on basis of cost $479.4 $476.2
Less accumulated depreciation 234.9 244.5 226.5 249.7
------ ------
DEFERRED INCOME TAXES 32.6 23.5
PREPAID PENSION COSTS 2.1 27.3
EXCESS OF COST OVER NET ASSETS ACQUIRED 23.0 23.6
OTHER ASSETS 7.3 3.9
------ ------
Total Assets $963.9 $972.6
====== ======
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES
Accounts payable $108.7 $ 92.8
Payables to related companies - trade and other 24.2 14.4
Accrued liabilities 27.8 32.5
Long-term debt due within one year 8.1 4.7
------ ------
Total current liabilities 168.8 144.4
LONG-TERM DEBT 14.7 18.9
NOTE PAYABLE TO RELATED COMPANY 293.8 -
DEFERRED EMPLOYEE BENEFITS AND OTHER 143.3 140.8
------ ------
Total liabilities 620.6 304.1
STOCKHOLDERS' EQUITY (Schedule A) 343.3 668.5
------ ------
Total Liabilities and Stockholders' Equity $963.9 $972.6
====== ======
</TABLE>
See notes to consolidated financial statements
-3-
<PAGE>
RYERSON TULL, INC.
AND SUBSIDIARY COMPANIES
(A majority-owned subsidiary of Inland Steel Industries, Inc.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
================================================================================
NOTE 1/FINANCIAL STATEMENTS
Results of operations for any interim period are not necessarily indicative of
results of any other periods or for the year. The financial statements as of
June 30, 1996 and for the three-month and six-month periods ended June 30, 1996
and 1995 are unaudited, but in the opinion of management include all adjustments
necessary for a fair presentation of results for such periods. These financial
statements should be read in conjunction with the financial statements and
related notes contained in the S-1 Registration Statement filed with the
Securities and Exchange Commission in June of 1996.
NOTE 2/RECAPITALIZATION
In the 1996 second quarter, Inland Steel Industries, Inc. ("Industries")
undertook a recapitalization that involved the Company. As part of the
recapitalization, the Company exchanged existing shares of Company common stock,
all of which were owned by Industries, for 34.0 million shares of new-issue
Series B common stock ($1.00 par value per share). The Company also sold 5.2
million shares of new-issue Series A common stock ($1.00 par value per share) in
a public offering, the net proceeds of which approximated $77.1 million.
Prior to the issuance of the Series A common stock, the Company declared and
paid dividends of $445.9 million to Industries, of which $152.1 million was in
cash and $293.8 million was in the form of a note payable. Industries used $63.2
million of the cash dividend to repay intercompany borrowing from the Company
and its subsidiaries. Of the $445.9 million of dividends paid, $198.3 million
eliminated the retained earnings balance that existed at June 26, 1996, while
the remaining $247.6 million reduced capital in excess of par value.
In July (subsequent to the date of the balance sheet presented in the attached
financial statements), the Company sold $150 million of 8-1/2% Notes due July
15, 2001 and $100 million of 9-1/8% Notes due July 15, 2006 in a public
offering. The net proceeds of the offering along with a portion of the Company's
cash on hand was used to pay the $293.8 million note balance due Industries.
Industries' recapitalization efforts also included the following during the 1996
second quarter:
Effective April 30, 1996, that portion of the Industries Pension Plan covering
the Company's current and former employees was separated and became the Ryerson
Tull Pension Plan, a new and separate plan sponsored by the Company. Due to this
separation, the Company's benefit obligation was remeasured using plan data and
actuarial assumptions as of April 30, 1996, including an increase in the
discount rate from 7.75 percent used previously to 8.0 percent. As a result, the
Company recognized a $25.4 million decrease in its prepaid pension cost, a $16.5
million reduction in retained earnings and an $8.9 million deferred tax asset
increase.
Effective June 1, 1996, as the result of a capital contribution from Industries
to the Company, Inland Industries de Mexico and its 50 percent owned Ryerson de
Mexico joint venture became part of the Company. The contribution increased both
investments in joint ventures and capital in excess of par value by $18.9
million.
On June 28, 1996, the Company established a new four-year $250 million credit
facility at the parent company. The $200 million Ryerson facility and the $25
million Tull facility were concurrently terminated.
-4-
<PAGE>
RYERSON TULL, INC.
AND SUBSIDIARY COMPANIES
(A majority-owned subsidiary of Inland Steel Industries, Inc.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
================================================================================
NOTE 3/ RELATED PARTY TRANSACTIONS
The Company has agreed to procedures established by Industries for charging
Industries' administrative expenses to the operating companies owned by it.
Pursuant to these procedures, the Company was charged $3.5 million and $3.6
million by Industries for the first six months of 1996 and 1995, respectively,
for management, financial and legal services provided to the Company.
Prior to the recapitalization, procedures had been established to charge
interest on all intercompany loans within the Industries group of companies.
Such loans arose as part of a corporate-wide cash management program and bore
interest at the prime rate. In May, after all such intercompany loans were
repaid, the Company ceased participation in such programs and the Company's cash
is not and will no longer be held in Industries' accounts. The Company's net
intercompany interest income for each of the first six months of 1996 and 1995
totaled $1.6 million.
The Company sells to and purchases products from related companies at prevailing
market prices. These transactions are summarized as follows:
<TABLE>
<CAPTION>
Dollars in Millions
---------------------------------
Three Months Six Months
Ended June 30 Ended June 30
-------------- ---------------
1996 1995 1996 1995
----- ----- ------ -----
<S> <C> <C> <C> <C>
Net Product Sales $ 3.9 $ 4.3 $ 9.1 $ 8.0
Net Product Purchases 48.4 41.6 106.1 86.1
</TABLE>
NOTE 4/EARNINGS PER SHARE
Pro forma earnings per share assumes that 39,220,000 shares of common stock were
outstanding during all periods presented.
-5-
<PAGE>
ITEM 2.
Management's Discussion and Analysis of Financial Condition
and Results of Operations
RESULTS OF OPERATIONS - Comparison of Second Quarter 1996 to Second Quarter 1995
- --------------------------------------------------------------------------------
The Company reported consolidated net income of $18.9 million, or $.48 per
common share on a pro forma basis, in the 1996 second quarter, as compared with
$24.0 million, or $.61 per common share pro forma, in the year-earlier period.
Lower quarter-to-quarter earnings resulted primarily from a decline in selling
prices.
Consolidated net sales of $607.5 million were 3.8 percent lower than the
year-ago quarter. A 7 percent increase in volume from 592,700 tons to 634,800
tons,was more than offset by a 10 percent decrease in average selling price,
from $1,065 to $957 per ton.
Operating costs decreased 2.7 percent to $574.8 million. The Company's
operating costs consist of material purchases and operating expenses. Gross
profit margin, the difference between the selling price and the material cost,
declined to $223 per ton from $251 per ton a year ago. Mitigating the erosion in
gross margin, however, is the improvement in operating expense control. On a per
ton basis, operating expense amounted to $172 in the second quarter of 1996,
compared to $182 a year ago.
Reflecting a narrower operating margin in a weaker market, operating profit
decreased to $32.7 million from $41.0 million in last year's second quarter.
Comparison of First Six Months of 1996 to First Six Months of 1995
- ------------------------------------------------------------------
For the first six months of 1996, the Company reported net income of $41.3
million, or $1.05 per common share on a pro forma basis, compared to $1.24 per
common share pro forma for the same period a year ago.
Net sales of $1.23 billion were down 4 percent from the year-ago level,
resulting from an 8 percent decrease in price and a 4 percent increase in
volume.
Operating profit decreased 16.6 percent to $69.3 million in the first six
months of 1996 from $83.0 million in the same period a year ago. The decline is
attributable entirely to lower gross profit margin, $228 per ton versus $248 per
ton last year, partly offset by improving operating expense performance, $173
per ton compared to $180 per ton a year ago.
Liquidity and Financing
- -----------------------
At June 30, 1996, the Company had cash and cash equivalents of $46.0 million
with no short-term borrowing.
In June 1996, the Company sold 5.2 million shares of new-issue Series A
common stock to unaffiliated parties. The net proceeds were approximately $77.1
million. As Industries holds all of the 34.0 million shares of Series B common
stock, it continues to hold a majority interest of the Company, representing
approximately 87 percent of the economic interest.
-6-
<PAGE>
Prior to the issuance of the Series A common stock, the Company declared and
paid dividends of $445.9 million to Industries, of which $152.1 million was in
cash (including the $77.1 million dividend referred to above) and $293.8 million
was in the form of a note payable. Industries used $63.2 million of the cash
dividend to repay intercompany borrowing from the Company and its subsidiaries.
Of the $445.9 million of dividends paid, $198.3 million eliminated the retained
earnings balance that existed at June 26, 1996, while the remaining $247.6
million reduced capital in excess of par value.
In July, the Company sold $250 million principal amount of Notes, consisting
of $150 million of 8-1/2% Notes due July 15, 2001 and $100 million of 9-1/8%
Notes due July 15, 2006 in a public offering. The net proceeds of the offering,
along with a portion of the cash on hand, were used to pay the $293.8 million
note balance due Industries and consequently will not be available to the
Company. Yearly interest expense will therefore increase by approximately $23
million as a result of this new debt.
In June 1996, the Company established a new four-year $250 million credit
facility at the parent company level. The $200 million Ryerson facility and the
$25 million Tull facility were concurrently terminated.
Restrictions contained in the Company's credit facility and the Notes
indenture prohibit the Company from declaring or paying cash dividends on
Company common stock under certain conditions. At June 30, 1996, up to $34
million of common dividends could have been paid.
-7-
<PAGE>
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
Not applicable.
ITEM 2. CHANGE IN SECURITIES.
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS.
Not applicable.
ITEM 5. OTHER INFORMATION.
Not applicable.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits.
NUMBER EXHIBIT
- ------ -------
3.1 Restated Certificate of Incorporation of the Company (Filed as Exhibit
3.1 to the Company's Registration Statement on Form S-1 (File No.
333-3235), and incorporated by reference herein.)
3.2 By-Laws of the Company.
4.1 Indenture, dated as of July 1, 1996, between the Company and The Bank
of New York.
4.2 Specimen of 8 1/2% Note due July 15, 2001.
4.3 Specimen of 9 1/8% Note due July 15, 2006.
4.4 Rights Agreement between the Company and Harris Trust and Savings
Bank, as Rights Agent, dated as of June 10, 1996.
4.5 Form of Class A Common Stock Certificate (Filed as Exhibit 4.3 to the
Company's Registration Statement on Form S-1 (File No. 333-3229), and
incorporated by reference herein.)
Note: No long-term debt instruments issued by the Company exceed 10% of the
consolidated total assets of the Company and its subsidiaries. In
accordance with paragraph 4(iii) of Item 601 of Regulation S-K, the
Company will furnish to the Commission upon request copies of long-
term debt instruments and related agreements.
-8-
<PAGE>
NUMBER EXHIBIT
- ------ -------
10.1 Registration Rights Agreement between the Company and Inland Steel
Industries, Inc. dated as of June 26, 1996.
10.2 Employment Agreement dated as of April 8, 1994 between Inland Steel
Industries, Inc. and Neil S. Novich (Filed as Exhibit 10.N.(8) to
Inland Steel Industries, Inc.'s Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, and incorporated by reference
herein.)
10.3 Severance Agreement dated as of April 8, 1994 between Inland Steel
Industries, Inc. and Neil S. Novich (Filed as Exhibit 10.N.(9) to
Inland Steel Industries, Inc.'s Annual Report on Form 10-K for the
fiscal year ended December 31, 1994, and incorporated by reference
herein.)
10.4 Employment Agreement between Inland Steel Industries, Inc. and Carl G.
Lusted, dated June 27, 1990 (Filed as Exhibit 10.4 to the Company's
Registration Statement on Form S-1 (File No. 333-3235), and
incorporated by reference herein.)
10.5 Form of Change in Control Agreements dated as of March 27, 1996,
between Inland Steel Industries, Inc. and the parties listed on the
Schedule thereto (Filed as Exhibit 10.5 to the Company's Registration
Statement on Form S-1 (File No. 333-3235), and incorporated by
reference herein.)
10.6 Change in Control Agreement dated as of March 27, 1996 between Inland
Steel Industries, Inc. and Neil S. Novich (Filed as Exhibit 10.6 to
the Company's Registration Statement on Form S-1 (File No. 333-3235),
and incorporated by reference herein.)
10.7 Form of Change in Control Agreements dated as of June 10, 1996 between
the Company and the parties listed on the Schedule thereto (Filed as
Exhibit 10.7 to the Company's Registration Statement on Form S-1 (File
No. 333-3235), and incorporated by reference herein.)
10.8 Change in Control Agreement dated as of June 10, 1996 between the
Company and Neil S. Novich (Filed as Exhibit 10.8 to the Company's
Registration Statement on Form S-1 (File No. 333-3235), and
incorporated by reference herein.)
10.9 Ryerson Tull Directors' Compensation Plan (Filed as Exhibit 10.9 to
the Company's Registration Statement on Form S-1 (File No. 333-3235),
and incorporated by reference herein.)
10.10 Ryerson Tull, Inc. Supplemental Retirement Plan for Covered Employees
(Filed as Exhibit 10.10 to the Company's Registration Statement on
Form S-1 (File No. 333-3235), and incorporated by reference herein.)
10.11 Ryerson Tull 1996 Incentive Stock Plan (Filed as Exhibit 10.11 to the
Company's Registration Statement on Form S-1 (File No. 333-3235), and
incorporated by reference herein.)
10.12 Corporate Separation Agreement between the Company and Inland Steel
Industries, Inc. dated as of June 26, 1996.
10.13 Cross-License Agreement between the Company and Inland Steel
Industries, Inc. dated as of June 26, 1996.
-9-
<PAGE>
NUMBER EXHIBIT
- ------ -------
10.14 Tax Sharing Agreement between the Company and Inland Steel Industries,
Inc. dated as of June 26, 1996.
10.15 ESOP Guarantee Agreement between Joseph T. Ryerson and Son, Inc. and
the Purchasers named therein, dated August 15, 1990 (Filed as Exhibit
10.15 to the Company's Registration Statement on Form S-1 (File No.
333-3235), and incorporated by reference herein.)
10.16 Inland Steel Industries, Inc. Non-Qualified Thrift Plan, as amended
(Filed as Exhibit 10.D to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1995, and incorporated by reference
herein.)
10.17 Inland Steel Industries, Inc. Supplemental Retirement Plan for Covered
Employees, as amended (Filed as Exhibit 10.I to Inland Steel
Industries, Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, and incorporated by reference herein.)
10.18 Inland Steel Industries, Inc. Special Retirement Plan for Covered
Employees (Filed as Exhibit 10.J to Inland Steel Industries, Inc.'s
Annual Report on Form 10-K for the fiscal year ended December 31,
1993, and incorporated by reference herein.)
10.19 Inland 1995 Incentive Stock Plan (Filed as Exhibit A to Inland Steel
Industries, Inc.'s definitive Proxy Statement dated April 17, 1995 and
was furnished to stockholders in connection with the annual meeting
held May 24, 1995, and incorporated by reference herein.)
10.20 Inland Steel Industries, Inc. Annual Incentive Plan (Filed as Exhibit
10.A to Inland Steel Industries, Inc.'s Quarterly Report on Form 10-Q
for the quarter ended September 30, 1995, and incorporated by
reference herein.)
10.21 Inland Steel Industries, Inc. Special Achievement Award Plan (Filed as
Exhibit 10.I to Inland Steel Industries, Inc.'s Annual Report on Form
10-K for the fiscal year ended December 31, 1987, and incorporated by
reference herein.)
10.22 Inland 1984 Incentive Stock Plan (Filed as Exhibit 10.A to Inland
Steel Industries, Inc.'s Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, and incorporated by reference herein.)
10.23 Inland 1988 Incentive Stock Plan (Filed as Exhibit 10.B to Inland
Steel Industries, Inc.'s Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, and incorporated by reference herein.)
10.24 Inland 1992 Incentive Stock Plan, as amended (Filed as Exhibit 10.C to
Inland Steel Industries, Inc.'s Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995, and incorporated by reference herein.)
10.25 Inland Steel Industries, Inc. Deferred Compensation Plan for Certain
Employees (Filed as Exhibit 10.J to Inland Steel Industries, Inc.'s
Annual Report on Form 10-K for the fiscal year ended December 31,
1994, and incorporated by reference herein.)
-10-
<PAGE>
NUMBER EXHIBIT
- ------ -------
27 Financial Data Schedule.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the second quarter of 1996.
-11-
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
RYERSON TULL, INC.
By Lily L. May
-------------------------------
Lily L. May
Controller and
Principal Accounting Officer
Date: August 9, 1996
-12-
<PAGE>
Part I -- Schedule A
--------------------
RYERSON TULL, INC.
AND SUBSIDIARY COMPANIES
(A majority-owned company of Inland Steel Industries, Inc.)
SUMMARY OF STOCKHOLDERS' EQUITY
================================================================================
<TABLE>
<CAPTION>
Dollars in Millions
--------------------------------------------
June 30, 1996 December 31, 1995
------------------ -----------------
(unaudited)
<S> <C> <C> <C> <C>
STOCKHOLDERS' EQUITY
- --------------------
Series A common stock ($1 par value)
- 5,220,000 shares issued and outstanding
as of June 30, 1996 $ 5.2 $ -
Series B common stock ($1 par value)
- 34,000,000 shares issued and outstanding
as of June 30, 1996 34.0 -
Common stock ($1 par value)
- 1 share issued and outstanding
as of December 31, 1995 - -
Capital in excess of par value (1) (2) 303.8 494.6
Retained earnings
Balance beginning of year $ 173.9 $85.4
Net income 41.3 88.5
Retained earnings impact of Pension Plan
split (16.5) -
Dividends on common stock (2) (198.3) .4 - 173.9
------- ----- ------
Cumulative translation adjustment (.1) -
----- ------
Total Stockholders' Equity $343.3 $668.5
====== ======
</TABLE>
(1) Capital in excess of par was increased by $71.9 million due to the issuance
of Series A common stock and $18.9 million as a result of the contribution
of Inland Industries de Mexico to Ryerson Tull. It was decreased by $34.0
million for the issuance of Series B common stock as part of the
recapitalization of Ryerson Tull.
(2) Of the $445.9 million of dividends paid in the 1996 second quarter, $198.3
million eliminated the balance in retained earnings at June 26, 1996 while
the remaining $247.6 million reduced capital in excess of par.
-13-
<PAGE>
INDEX TO EXHIBITS
-----------------
<TABLE>
<CAPTION>
NUMBER EXHIBIT PAGE
- ------ ------- ----
<S> <C> <C>
3.1 Restated Certificate of Incorporation of the Company
(Filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (File No. 333-3235), and
incorporated by reference herein.)
3.2 By-Laws of the Company.......................................
4.1 Indenture, dated as of July 1, 1996, between the
Company and The Bank of New York.............................
4.2 Specimen of 8 1/2% Note due July 15, 2001....................
4.3 Specimen of 9 1/8% Note due July 15, 2006....................
4.4 Rights Agreement between the Company and Harris
Trust and Savings Bank, as Rights Agent, dated as of
June 10, 1996................................................
4.5 Form of Class A Common Stock Certificate (Filed as
Exhibit 4.3 to the Company's Registration Statement on
Form S-1 (File No. 333-3229), and incorporated by
reference herein.)...........................................
Note: No long-term debt instruments issued by the Company
exceed 10% of the consolidated total assets of the
Company and its subsidiaries. In accordance with
paragraph 4(iii) of Item 601 of Regulation S-K, the
Company will furnish to the Commission upon request
copies of long-term debt instruments and related
agreements...................................................
10.1 Registration Rights Agreement between the Company
and Inland Steel Industries, Inc. dated as of June 26,
1996.........................................................
10.2 Employment Agreement dated as of April 8, 1994
between Inland Steel Industries, Inc. and Neil S. Novich
(Filed as Exhibit 10.N.(8) to Inland Steel Industries,
Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, and incorporated by
reference herein.) --
10.3 Severance Agreement dated as of April 8, 1994
between Inland Steel Industries, Inc. and Neil S. Novich
(Filed as Exhibit 10.N.(9) to Inland Steel Industries,
Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, and incorporated by
reference herein.) --
10.4 Employment Agreement between Inland Steel
Industries, Inc. and Carl G. Lusted, dated June 27,
1990 (Filed as Exhibit 10.4 to the Company's
Registration Statement on Form S-1 (File No. 333-
3235), and incorporated by reference herein.) --
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
NUMBER EXHIBIT PAGE
- ------ ------- ----
<S> <C> <C>
10.5 Form of Change in Control Agreements dated as of
March 27, 1996, between Inland Steel Industries, Inc.
and the parties listed on the Schedule thereto (Filed as
Exhibit 10.5 to the Company's Registration Statement
on Form S-1 (File No. 333-3235), and incorporated by
reference herein.) --
10.6 Change in Control Agreement dated as of March 27,
1996 between Inland Steel Industries, Inc. and Neil S.
Novich (Filed as Exhibit 10.6 to the Company's
Registration Statement on Form S-1 (File No. 333-
3235), and incorporated by reference herein.) --
10.7 Form of Change in Control Agreements dated as of
June 10, 1996 between the Company and the parties
listed on the Schedule thereto (Filed as Exhibit 10.7 to
the Company's Registration Statement on Form S-1
(File No. 333-3235), and incorporated by reference
herein.) --
10.8 Change in Control Agreement dated as of June 10,
1996 between the Company and Neil S. Novich (Filed
as Exhibit 10.8 to the Company's Registration
Statement on Form S-1 (File No. 333-3235), and
incorporated by reference herein.) --
10.9 Ryerson Tull Directors' Compensation Plan (Filed as
Exhibit 10.9 to the Company's Registration Statement
on Form S-1 (File No. 333-3235), and incorporated by
reference herein.) --
10.10 Ryerson Tull, Inc. Supplemental Retirement Plan for
Covered Employees (Filed as Exhibit 10.10 to the
Company's Registration Statement on Form S-1 (File
No. 333-3235), and incorporated by reference herein.) --
10.11 Ryerson Tull 1996 Incentive Stock Plan (Filed as
Exhibit 10.11 to the Company's Registration Statement
on Form S-1 (File No. 333-3235), and incorporated by
reference herein.) --
10.12 Corporate Separation Agreement between the
Company and Inland Steel Industries, Inc. dated as of
June 26, 1996................................................
10.13 Cross-License Agreement between the Company and
Inland Steel Industries, Inc. dated as of June 26, 1996......
10.14 Tax Sharing Agreement between the Company and
Inland Steel Industries, Inc. dated as of June 26, 1996......
10.15 ESOP Guarantee Agreement between Joseph T.
Ryerson and Son, Inc. and the Purchasers named
therein, dated August 15, 1990 (Filed as Exhibit 10.15
to the Company's Registration Statement on Form S-1
(File No. 333-3235), and incorporated by reference
herein.) --
</TABLE>
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10.16 Inland Steel Industries, Inc. Non-Qualified Thrift Plan,
as amended (Filed as Exhibit 10.D to the Company's
Quarterly Report on Form 10-Q for the quarter ended
June 30, 1995, and incorporated by reference herein.) --
10.17 Inland Steel Industries, Inc. Supplemental Retirement
Plan for Covered Employees, as amended (Filed as
Exhibit 10.I to Inland Steel Industries, Inc.'s Annual
Report on Form 10-K for the fiscal year ended
December 31, 1993, and incorporated by reference
herein.) --
10.18 Inland Steel Industries, Inc. Special Retirement Plan for
Covered Employees (Filed as Exhibit 10.J to Inland
Steel Industries, Inc.'s Annual Report on Form 10-K for
the fiscal year ended December 31, 1993, and
incorporated by reference herein.) --
10.19 Inland 1995 Incentive Stock Plan (Filed as Exhibit A to
Inland Steel Industries, Inc.'s definitive Proxy Statement
dated April 17, 1995 and was furnished to stockholders
in connection with the annual meeting held May 24,
1995, and incorporated by reference herein.) --
10.20 Inland Steel Industries, Inc. Annual Incentive Plan (Filed
as Exhibit 10.A to Inland Steel Industries, Inc.'s
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1995, and incorporated by reference
herein.) --
10.21 Inland Steel Industries, Inc. Special Achievement Award
Plan (Filed as Exhibit 10.I to Inland Steel Industries,
Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1987, and incorporated by
reference herein.) --
10.22 Inland 1984 Incentive Stock Plan (Filed as Exhibit 10.A
to Inland Steel Industries, Inc.'s Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995, and
incorporated by reference herein.) --
10.23 Inland 1988 Incentive Stock Plan (Filed as Exhibit 10.B
to Inland Steel Industries, Inc.'s Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995, and
incorporated by reference herein.) --
10.24 Inland 1992 Incentive Stock Plan, as amended (Filed as
Exhibit 10.C to Inland Steel Industries, Inc.'s Quarterly
Report on Form 10-Q for the quarter ended June 30,
1995, and incorporated by reference herein.) --
10.25 Inland Steel Industries, Inc. Deferred Compensation
Plan for Certain Employees (Filed as Exhibit 10.J to
Inland Steel Industries, Inc.'s Annual Report on Form
10-K for the fiscal year ended December 31, 1994, and
incorporated by reference herein.) --
</TABLE>
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27 Financial Data Schedule......................................
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EXHIBIT 3.2
BY-LAWS
OF
RYERSON TULL, INC.
(AS AMENDED TO AND INCLUDING JUNE 10, 1996)
ARTICLE I
OFFICES
Section 1. The registered office of the Corporation shall be in the City
of Wilmington, County of New Castle, State of Delaware. The Corporation may
also have offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of Directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be designated
by the Board of Directors.
Section 2. Annual Meetings; Nomination of Directors. An annual meeting of
stockholders shall be held for the purpose of electing Directors and for the
transaction of only such other business as is properly brought before the
meeting in accordance with these By-laws. The date of the annual meeting shall
be such date as may be determined by the Board of Directors.
To be properly brought before the meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board, (b) otherwise properly brought before the meeting by
or at the direction of the Board or (c) otherwise properly brought before the
meeting by a stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Corporate
Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than ninety days prior to the meeting; provided, however,
that if less than one hundred five days' notice or prior public disclosure of
the date of a meeting is given or made to stockholders, such stockholder's
notice shall also be deemed to be timely as to such meeting if so delivered or
received not less than ninety days prior to the day and month during that year
which is the same as the day and month of the prior year's annual meeting.
<PAGE>
A stockholder's notice to the Corporate Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Article II, Section 2, provided, however, that nothing in this
Article II, Section 2 shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting.
The Chairman of an annual meeting shall, if the facts warrant, in his or
her sole discretion, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the provisions of this
Article II, Section 2, and if he or she should so determine, he or she shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations of persons for
election to the Board of the Corporation at the annual meeting may be made at a
meeting of stockholders by or at the direction of the Board of Directors by any
nominating committee or person appointed by the Board or by any stockholder of
the Corporation entitled to vote for the election of Directors at the meeting
who complies with the notice procedures set forth in this Article II, Section 2.
Such nominations, other than those made by or at the direction of the Board,
shall be made pursuant to timely notice in writing to the Corporate Secretary of
the Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than ninety days prior to the meeting; provided, however, that if less than
one hundred five days' notice or prior public disclosure of the date of a
meeting is given or made to stockholders, such stockholder's notice shall also
be deemed to be timely as to such meeting if so delivered or received not less
than ninety days prior to the day and month during that year which is the same
as the day and month of the prior year's annual meeting. Such stockholder's
notice to the Corporate Secretary shall set forth: (a) as to each person whom
the stockholder proposes to nominate for election or re-election as a Director,
(i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the class and number
of shares of capital stock of
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the Corporation which are beneficially owned by the person, (iv) such person's
signed consent to serve as a Director of the Corporation if elected and (v) any
other information relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice, (i) the name and record address of such
stockholder and (ii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by such stockholder. The Corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as Director of the Corporation. No person shall be
eligible for election as a Director of the Corporation unless nominated in
accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant, in his or her sole
discretion, determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if he or she should so
determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 3. Special Meetings. Except as otherwise required by law, special
meetings of the stockholders of the Corporation may be called only by (i) the
Board of Directors pursuant to a resolution approved by the affirmative vote of
a majority of the Directors then in office, (ii) the Chairman of the Board,
(iii) the Vice Chairman of the Board if one is elected or (iv) the President.
Only those matters set forth in the notice of the special meeting may be
considered or acted upon at such special meeting, except as otherwise provided
by law.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall, unless
otherwise required by law, be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting. The notice of any special meeting of stockholders shall state the
purpose or purposes for which the meeting is called. If mailed, such notice
shall be deemed to be delivered to a stockholder when deposited in the United
States mail in a sealed envelope addressed to the stockholder at his or her
address as it appears on the records of the Corporation with postage thereon
paid.
Section 5. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at any meeting
of the stockholders, except as otherwise provided by law, by the Corporation's
Restated Certificate of Incorporation, as the same now exists or may
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hereafter be amended (the "Certificate of Incorporation"), or by these By-laws.
If a quorum is not present or represented, the holders of the stock present in
person or represented by proxy at the meeting and entitled to vote thereat shall
have power, by the affirmative vote of the holders of a majority of such stock,
to adjourn the meeting to another time and/or place, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 6. Voting. At all meetings of the stockholders, each holder of
record on the record date for the meeting shall be entitled to vote as set forth
in the Certificate of Incorporation (including any Certificates of Designations)
or as otherwise required by law, in person or by proxy, the shares of voting
stock owned of record by such stockholder on the record date. When a quorum is
present or represented at any meeting, the vote of the holders of a majority of
the stock voted on such matter in person or by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of law or of the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question, and except that Directors shall be elected by a
plurality of the votes of the stock present in person or represented by proxy
and entitled to vote on the election of Directors. If the Certificate of
Incorporation provides for more or less than one vote for any share of stock, on
any matter, every reference in the Certificate of Incorporation or these By-laws
to a majority or other proportion of stock shall refer to such majority or other
proportion of the votes of such stock.
ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of a Board of
Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of Incorporation
or by these By-laws directed or required to be exercised or done by the
stockholders.
Section 2. Number of Directors. The number of Directors of the
Corporation shall be fixed from time to time by the vote of a
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majority of the entire Board of Directors, but such number shall in no case be
less than three. Any such determination made by the Board of Directors shall
continue in effect unless and until changed by the Board of Directors, but no
such change shall affect the term of any Director then in office.
Section 3. Classification of Directors. The Directors shall be divided
into three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
Directors constituting the entire Board of Directors. At each annual meeting of
stockholders, successors to the class of Directors whose term expires at that
annual meeting shall be elected for a three-year term. If the authorized number
of Directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of Directors in each class as nearly equal
as possible. Any Director of any class elected to fill a vacancy resulting from
an increase in such class or otherwise shall hold office for a term that shall
coincide with the remaining term of the class into which such Director is
elected, but in no case will a decrease in the number of Directors shorten the
term of any incumbent Director.
Section 4. Qualification; Term of Office; Election; Removal from Office.
Directors need not be residents of Delaware or stockholders of the Corporation.
A Director shall hold office until the annual meeting for the year in which his
or her term expires and until his or her successor shall be elected and shall
qualify, subject, however, to earlier death, resignation or removal from office.
Elections of Directors need not be by written ballot. Any Director may be
removed only for cause by the affirmative vote of the holders of not less than
80% of the voting power represented by all the shares of stock of the
Corporation outstanding and entitled to vote for the election of Directors,
given at a duly called annual or special meeting of stockholders.
Section 5. Vacancies. All vacancies and newly created directorships
resulting from any increase in the number of Directors shall be filled only by a
majority of the Directors then in office (even if less than a quorum), and each
Director so chosen shall hold office until his or her successor is elected and
qualified or until his or her earlier resignation or removal. If there are no
Directors in office, then an election of Directors may be held in the manner
provided by law. Any Director elected to fill a vacancy resulting from an
increase in the number of Directors or otherwise shall hold office for a term
that shall coincide with the remaining term of the class into which such
Director is elected.
Section 6. Place of Meetings. The Board of Directors may hold meetings,
whether regular or special, within or without the State of Delaware.
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Section 7. Regular Meetings. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and place as shall from time to time be determined by
the Board. No notice of regular meetings need be given.
Section 8. Special Meetings. Special meetings of the Board may be called
by the Chairman of the Board, the Vice Chairman of the Board, a majority of the
Directors or the President and Chief Executive Officer. Special meetings shall
be called by the Corporate Secretary on the written request of a majority of the
Board of Directors. Notice of special meetings shall be given at least one day
before any such meeting. Such notice may be given by telephone, by facsimile or
other electronic means, by messenger or by mail and, if given by messenger or
mail shall be deemed delivered when presented to the messenger or deposited in
the United States mail in a sealed envelope addressed to the Director with
postage thereon paid.
Section 9. Quorum. At all meetings of the Board of Directors a majority of
the total number of Directors shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specifically provided by law, the Certificate of Incorporation
or these By-laws. If a quorum shall not be present at any meeting of the Board
of Directors, the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 10. Organization. Except as provided in Article III, Section 5 of
these By-laws, the Directors shall designate from among their number a Chairman
of the Board, who shall preside at all meetings of the stockholders and of the
Board of Directors of the Corporation and who, if he or she is an employee of
the Corporation, shall exercise all of the powers and duties conferred on the
Chairman of the Board by the provisions of these By-laws. If a Chairman of the
Board is not elected or, if elected, is not present, the Vice Chairman of the
Board, if any, or if the Vice Chairman of the Board is not present, the
President and Chief Executive Officer or, in the absence of the President and
Chief Executive Officer, a Director chosen by a majority of the Directors
present, shall act as chairman at meetings of the Board of Directors. If the
person selected by the Directors as the Chairman of the Board is not, or ceases
to be, an employee of the Corporation, then, notwithstanding any other provision
of these By-laws to the contrary, he or she shall exercise only such powers and
duties conferred on the Chairman of the Board by these By-laws as the Directors
shall determine by resolution duly adopted and any
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other powers and duties, including those of chief executive officer of the
Corporation, shall be exercised by the President and Chief Executive Officer of
the Corporation.
Immediately upon the Chairman of the Board's death, physical or mental
incapacity, or other inability to act (other than due to absence for a brief and
identifiable period), the Chairman of the committee responsible for recommending
candidates to fill vacancies on the Board of Directors of the Corporation (the
"Nominating Committee Chairman") shall assume the position of Chairman of the
Board and responsibility for performing all functions, authorities and duties
thereof, and shall serve in such capacity until his or her successor is duly
elected and qualified pursuant to Article III, Section 4 and any other
applicable provision of these By-laws or until his or her earlier death,
resignation or removal. The Nominating Committee Chairman shall have sole
discretion to determine, at any time and from time to time, whether the Chairman
of the Board is physically or mentally incapacitated, otherwise unable to act,
or absent for other than a brief and identifiable period and shall, immediately
upon making such a determination or learning of the death of the Chairman of the
Board, notify each member of the Board of Directors and each officer of the
Corporation of the relevant facts and circumstances.
Section 11. Committees. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate one or more committees, each such
committee to consist of one or more Directors. Except as expressly limited by
the General Corporation Law of the State of Delaware or the Certificate of
Incorporation, any such committee shall have and may exercise such powers as the
Board of Directors may determine and specify in the resolution designating such
committee. The Board of Directors, by resolution adopted by a majority of the
whole Board, also may designate one or more additional Directors as alternate
members of any such committee to replace any absent or disqualified member at
any meeting of the committee, and at any time may change the membership of any
committee or amend or rescind the resolution designating the committee. In the
absence or disqualification of a member or alternate member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another Director to act at the meeting in the place of any
such absent or disqualified member, provided that the Director so appointed
meets any qualifications stated in the resolution designating the committee.
Each committee shall keep a record of proceedings and report the same to the
Board of Directors to such extent and in such form as the Board of Directors may
require. Unless otherwise provided in the resolution designating a committee, a
majority of all of the members of any such committee may select its Chairman,
fix its rules or procedures, fix the time
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and place of its meetings and specify what notice of meetings, if any, shall be
given.
Section 12. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
Section 13. Attendance by Telephone. Members of the Board of Directors, or
of any committee, may participate in a meeting of the Board of Directors, or of
such committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Section 14. Compensation. The Board of Directors shall have the authority
to fix the compensation of Directors, which may include reimbursement of their
expenses, if any, of attendance of each meeting of the Board of Directors or of
a committee.
ARTICLE IV
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President and Chief Executive Officer, a
Corporate Secretary, a Treasurer and a Controller. The Board of Directors may
also elect a Chairman of the Board, a Vice Chairman, one or more Assistants to
the Chairman, one or more Vice Presidents, a General Counsel, one or more
Assistant Corporate Secretaries and Assistant Treasurers and such other officers
and agents as it shall deem appropriate. Any number of offices may be held by
the same person.
Section 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified, or until their earlier death,
resignation or removal from office. Any officer elected or appointed by the
Board of Directors may be removed at any time by the Board of Directors. Any
vacancy occurring in any office of the Corporation required by this Article IV
shall be filled by the Board of Directors, and any vacancy in any other office
may be filled by the Board of Directors.
Section 3. Chairman of the Board. Subject to the provisions of Article
III, Section 10 of these By-laws, the Chairman of the
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Board, when elected, shall preside at all meetings of the stockholders and of
the Board of Directors and shall have such other functions, authority and duties
as may be prescribed by the Board of Directors.
Section 4. Vice Chairman of the Board. The Vice Chairman of the Board
shall, in the case of absence of the Chairman of the Board for any brief and
identifiable period, have and exercise the powers and duties of the Chairman of
the Board. He or she shall have such other duties and powers as may be assigned
to him by the Board of Directors or the Chairman of the Board.
Section 5. President and Chief Executive Officer. The President and Chief
Executive Officer shall be the chief executive officer of the Corporation and,
as such, shall have general supervision, direction and control of the business
and affairs of the Corporation, subject to the control of the Board of
Directors, and such other duties as customarily appertain to the office of the
chief executive of a business corporation or as may be prescribed by the Board
of Directors or the Chairman of the Board.
Section 6. Executive and Senior Vice Presidents. Each Executive Vice
President shall have such duties and powers as may be assigned to him or her by
the Board of Directors, the Chairman of the Board, the Vice Chairman of the
Board or the President and Chief Executive Officer. An Executive Vice President,
designated by the Board of Directors, shall (in the event of absence, death or
other inability to act of the President and Chief Executive Officer) have and
exercise the powers and duties of the President and Chief Executive Officer.
Each Senior Vice President shall have such duties and powers as may be
assigned to him or her by the Board of Directors, the Chairman of the Board, the
Vice Chairman of the Board or the President and Chief Executive Officer.
Section 7. Vice Presidents. Each Vice President shall perform such duties
and have such other powers as may from time to time be prescribed by the Board
of Directors, the Chairman of the Board, the Vice Chairman of the Board or the
President and Chief Executive Officer.
Section 8. Corporate Secretary. The Corporate Secretary shall keep a
record of all proceedings of the stockholders of the Corporation and of the
Board of Directors, and shall perform like duties for any committee when
required. The Corporate Secretary shall give, or cause to be given, notice, if
any, of all meetings of the stockholders and shall perform such other duties as
may be prescribed by the Board of Directors, the Chairman of the Board, the Vice
Chairman of the Board or the President and Chief Executive Officer. The
Corporate Secretary shall have custody of the
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corporate seal of the Corporation and the Corporate Secretary, or in the absence
of the Corporate Secretary any Assistant Corporate Secretary, shall have
authority to affix the same to any instrument requiring it, and when so affixed
it may be attested by the signature of the Corporate Secretary or an Assistant
Corporate Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest such affixing
of the seal.
Section 9. Assistant Corporate Secretary. The Assistant Corporate
Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Board of Directors (or if there be no such determination, then
in the order of their election), shall, in the absence of the Corporate
Secretary or in the event of the Corporate Secretary's inability or failure to
act, perform the duties and exercise the powers of the Corporate Secretary and
shall perform such other duties as may from time to time be prescribed by the
Board of Directors, the Chairman of the Board, the Vice Chairman of the Board,
the President and Chief Executive Officer or the Corporate Secretary.
Section 10. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, keeping proper records of such disbursements,
and shall render to the Chairman of the Board, Vice Chairman of the Board, the
Chairman of any committee, the President and Chief Executive Officer, the
officer designated by the Board of Directors as Chief Financial Officer, if any,
and the Board of Directors and any committee at their regular meetings or when
the Board of Directors so requires, an account of all transactions as Treasurer
and of the financial condition of the Corporation. The Treasurer shall perform
such other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, the Vice Chairman of the Board, the
President and Chief Executive Officer or the Chief Financial Officer.
Section 11. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability, failure or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board,
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the Vice Chairman of the Board, the President and Chief Executive Officer or the
Treasurer.
Section 12. Assistant to the Chairman. The Assistant to the Chairman of
the Board shall have and exercise such powers and duties as may be assigned to
him or her by the Chairman of the Board.
Section 13. General Counsel. The General Counsel, if there be one, shall
be responsible for the legal affairs of the Corporation and shall have such
other duties as from time to time may be assigned to him or her by the Chairman
of the Board, the Vice Chairman of the Board, the President and Chief Executive
Officer or the Board of Directors.
Section 14. Controller. The Controller shall be the chief accounting
officer of the Corporation. He or she shall, when proper, approve all bills for
purchases, payrolls, and similar instruments providing for disbursement of money
by the Corporation, for payment by the Treasurer. He or she shall be in charge
of and maintain books of account and accounting records of the Corporation. He
or she shall perform such other acts as are usually performed by a Controller of
a corporation. He or she shall render to the Chairman of the Board, the Vice
Chairman of the Board, the Chairman of any committee, the President and Chief
Executive Officer, the Chief Financial Officer, the Board of Directors and any
committee, such reports as any thereof may require.
Section 15. Other Officers. Any officer who is elected or appointed from
time to time by the Board of Directors and whose duties are not specified in
these By-laws shall perform such duties and have such powers as may be
prescribed from time to time by the Board of Directors, the Chairman of the
Board, the Vice Chairman of the Board or the President and Chief Executive
Officer.
Section 16. Surety Bonds. The Board of Directors may by resolution,
require any officers of the Corporation to give bonds for the faithful discharge
of their duties in such sums and with such sureties as the Board of Directors
shall determine, the expense of which shall be paid by the Corporation.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Certificates of stock
in the Corporation,
-11-
<PAGE>
if any, shall be signed by or in the name of the Corporation by the Chairman of
the Board, the President and Chief Executive Officer or a Vice President and by
the Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant
Corporate Secretary of the Corporation. The signatures of the Chairman of the
Board, the President and Chief Executive Officer or a Vice President and the
Treasurer, an Assistant Treasurer, the Corporate Secretary or an Assistant
Corporate Secretary may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, the certificate may be issued by the
Corporation with the same effect as if such officer, transfer agent or registrar
were such officer, transfer agent or registrar at the date of its issue.
Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction on its books.
Section 3. Replacement. In case of the loss, destruction or theft of a
certificate for any stock of the Corporation, a new certificate of stock or
uncertificated shares in place of any certificate therefor issued by the
Corporation may be issued upon satisfactory proof of such loss, destruction or
theft and upon such terms as the Board of Directors may prescribe. The Board of
Directors may in its discretion require the owner of the lost, destroyed or
stolen certificate, or his or her legal representative, to give the Corporation
a bond, in such sum and in such form and with such surety or sureties as it may
direct, to indemnify the Corporation against any claim that may be made against
it with respect to a certificate alleged to have been lost, destroyed or stolen.
ARTICLE VI
INDEMNIFICATION
Section 1. Each person who was or is made a party or is threatened to be
made a party to or is involved in or called as a witness in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and any appeal therefrom (hereinafter,
collectively a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is, was or had agreed to become a
Director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation
-12-
<PAGE>
as a Director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, shall be indemnified and held harmless by the
Corporation to the fullest extent permitted under the General Corporation Law of
the State of Delaware (the "DGCL"), as the same now exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification rights than
the DGCL permitted the Corporation to provide prior to such amendment), against
all expenses (including attorneys' fees), liabilities and losses, judgments,
fines, excise taxes or penalties pursuant to the Employee Retirement Income
Security Act of 1974, as amended, and amounts paid or to be paid in settlement,
reasonably incurred or suffered by such person in connection therewith; provided
that, except as explicitly provided herein, prior to a Change in Control, as
defined herein, a person seeking indemnity in connection with a proceeding (or
part thereof) initiated by such person against the Corporation or any Director,
officer, employee or agent of the Corporation shall not be entitled thereto
unless the Corporation has joined in or consented to such proceeding (or part
thereof). For purposes of this Article, a "Change in Control of the
Corporation" shall be deemed to have occurred if, after June 10, 1996, (i) any
"Person" (as is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) becomes (except in a transaction approved in advance by the
Board of Directors of the Corporation) the beneficial owner (as defined in Rule
13d-3 under such Act), directly or indirectly, of securities of the Corporation
representing 20% or more of the combined voting power of the Corporation's then
outstanding securities or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Corporation cease for any reason to constitute at least a
majority thereof unless the election of each Director who was not a Director at
the beginning of the period was approved by a vote of at least two-thirds of the
Directors then still in office who were Directors at the beginning of the
period.
Any indemnification under this Section 1 (unless ordered by a court) shall
be paid by the Corporation unless within 60 days of such request for
indemnification a determination is made (i) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties to such
proceeding, (ii) if such quorum is not obtainable, or even if obtainable a
quorum of disinterested Directors so directs, by independent legal counsel (who
may be the regular counsel of the Corporation) in a written opinion or (iii) by
the stockholders, that indemnification of such person is not proper under the
circumstances because such person has not met the necessary standard of conduct
under Delaware law; provided, however, that following a Change in Control of the
Corporation, with respect to all matters thereafter arising out of acts,
omissions or events prior to the Change in Control of the
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<PAGE>
Corporation concerning the rights of any person seeking indemnification under
this Section 1, such determination shall be made by special independent counsel
selected by such person and approved by the Corporation (which approval shall
not be unreasonably withheld), which counsel has not otherwise performedservices
(other than in connection with similar matters) within the five years preceding
its engagement to render such opinion for such person or for the Corporation or
any affiliates (as such term is defined in Rule 405 under the Securities Act of
1933, as amended) of the Corporation (whether or not they were affiliates when
services were so performed) ("Independent Counsel"). Unless such person has
theretofore selected Independent Counsel pursuant to this Section 1 and such
Independent Counsel has been approved by the Corporation, legal counsel approved
by a resolution or resolutions of the Board of Directors prior to a Change in
Control of the Corporation shall be deemed to have been approved by the
Corporation as required. Such Independent Counsel shall determine as promptly
as practicable whether and to what extent such person would be permitted to be
indemnified under applicable law and shall render its written opinion to the
Corporation and such person to such effect. The Corporation agrees to pay the
reasonable fees of the Independent Counsel referred to above and to fully
indemnify such Independent Counsel against any and all expenses, claims,
liabilities and damages arising out of or relating to this Article or its
engagement pursuant hereto.
Section 2. Expenses. Expenses, including attorneys' fees, incurred by a
person referred to in Section 1 of this Article in defending or otherwise being
involved in a proceeding shall be paid by the Corporation in advance of the
final disposition of such proceeding, including any appeal therefrom, upon
receipt of an undertaking (the "Undertaking") by or on behalf of such person to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Corporation.
Section 3. Right of Claimant to Bring Suit. If a claim under Section 1
hereof is not paid in full by the Corporation within 60 days after a written
claim has been received by the Corporation or if expenses pursuant to Section 2
hereof have not been advanced within 10 days after a written request for such
advancement accompanied by the Undertaking has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim or the advancement of expenses. (If the
claimant is successful, in whole or in part, in such suit or any other suit to
enforce a right for expenses or indemnification against the Corporation or any
other party under any other agreement, such claimant shall also be entitled to
be paid the reasonable expense of prosecuting such claim.) It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where
-14-
<PAGE>
the required Undertaking has been tendered to the Corporation) that the claimant
has not met the standards of conduct which make it permissible under the DGCL
for the Corporation to indemnify the claimant for the amount claimed. After a
Change in Control, the burden of proving such defense shall be on the
Corporation, and any determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant had
not met the applicable standard of conduct required under the DGCL shall not be
a defense to the action nor create a presumption that claimant had not met such
applicable standard of conduct.
Section 4. Non-Exclusivity of Rights. The rights conferred on any person
by this Article shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-laws, agreement, vote of stockholders or disinterested
Directors or otherwise. The Board of Directors shall have the authority, by
resolution, to provide for such other indemnification of Directors, officers,
employees or agents as it shall deem appropriate.
Section 5. Insurance. The Corporation may purchase and maintain insurance
to protect itself and any Director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expenses, liabilities or losses, whether or not the
Corporation would have the power to indemnify such person against such expenses,
liabilities or losses under the DGCL.
Section 6. Enforceability. The provisions of this Article shall be
applicable to all proceedings commenced after its adoption, whether such arise
out of events, acts, omissions or circumstances which occurred or existed prior
or subsequent to such adoption, and shall continue as to a person who has ceased
to be a Director, officer or employee and shall inure to the benefit of the
heirs, executors and administrators of such person. This Article shall be
deemed to grant each person who, at any time that this Article is in effect,
serves or agrees to serve in any capacity which entitles him or her to
indemnification hereunder rights against the Corporation to enforce the
provisions of this Article, and any repeal or other modification of this Article
or any repeal or modification of the DGCL or any other applicable law shall not
limit any rights of indemnification then existing or arising out of events,
acts, omissions, or circumstances occurring or existing prior to such repeal
or modification, including, without limitation, the right to indemnification for
proceedings commenced after such repeal or modification to enforce this Article
with regard to acts, omissions, events or circumstances occurring or existing
prior to such repeal or modification.
Section 7. Severability. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent
-15-
<PAGE>
jurisdiction, then the Corporation shall nevertheless indemnify each Director,
officer and employee of the Corporation as to costs, charges and expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article that shall not
have been invalidated and to the full extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 2. Corporate Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 3. Waiver of Notice. Whenever any notice is required to be given
under law or the provisions of the Certificate of Incorporation or these By-
laws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent to notice.
ARTICLE VIII
AMENDMENTS
Both the Board of Directors and the stockholders shall have the power to
alter, amend or repeal these By-laws. Any repeal or change of these By-laws by
the stockholders shall require the affirmative vote of the holders of not less
than 80% of the votes entitled to be cast on the matter.
-16-
<PAGE>
EXHIBIT 4.1
===========================================
RYERSON TULL, INC.
TO
THE BANK OF NEW YORK
Trustee
_________
INDENTURE
Dated as of July 1, 1996
Debt Securities
===========================================
<PAGE>
Ryerson Tull, Inc.
Certain Sections of this Indenture relating to
Sections 3.10 through 3.18, inclusive, of the
Trust Indenture Act of 1939, as amended:
<TABLE>
<CAPTION>
Provision of Trust
Indenture Act of 1939,
as amended Indenture Section
<S> <C>
(S) 310(a)(1) ..................................... 6.9
(a)(2) ..................................... 6.9
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(b) ..................................... 6.8, 6.10
(c) ..................................... Not Applicable
(S) 311(a) ..................................... 6.13
(b) ..................................... 6.13
(c) ..................................... Not Applicable
(S) 312(a) ..................................... 7.1, 7.2(a)
(b) ..................................... 7.2(b)
(c) ..................................... 7.2(c)
(S) 313(a) ..................................... 7.3(a)
(b) ..................................... 7.3(a)
(c) ..................................... 7.3(a)
(d) ..................................... 7.3(b)
(S) 314(a) ..................................... 7.4
(a)(4) ..................................... 1.1, 10.4
(b) ..................................... Not Applicable
(c)(1) ..................................... 1.2
(c)(2) ..................................... 1.2
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.2
(S) 315(a) ..................................... 6.1
(b) ..................................... 6.2
(c) ..................................... 6.1
(d) ..................................... 6.1
(e) ..................................... 5.14
(S) 316(a) ..................................... 1.1
(a)(1)(A) ..................................... 5.2, 5.12
(a)(1)(B) ..................................... 5.13
(a)(2) ..................................... Not Applicable
(b) ..................................... 5.8
(c) ..................................... 1.4(c)
(S) 317(a)(1) ..................................... 5.3
(a)(2) ..................................... 5.4
(b) ..................................... 10.3
(S) 318(a) ..................................... 1.7
</TABLE>
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
Page
----
RECITALS OF THE COMPANY..................................................... 1
ARTICLE I
Definitions and Other Provisions
of General Application
<TABLE>
<CAPTION>
<S> <C>
Section 1.1 Definitions.............................................. 1
Act........................................................... 2
Affiliate..................................................... 2
Asset Disposition............................................. 2
Attributable Debt............................................. 2
Authenticating Agent.......................................... 3
Board of Directors............................................ 3
Board Resolution.............................................. 3
Book-Entry Security........................................... 3
Business Day.................................................. 3
Capital Lease Obligations..................................... 3
Capital Stock................................................. 3
Commission.................................................... 3
Company....................................................... 4
Company Request or Company Order.............................. 4
Consolidated Net Income....................................... 4
Consolidated Net Tangible Assets.............................. 4
Consolidated Net Worth........................................ 4
Corporate Trust Office........................................ 4
Corporation................................................... 4
Debt.......................................................... 4
Defaulted Interest............................................ 5
Depository.................................................... 5
Disqualified Stock............................................ 5
Event of Default.............................................. 5
Funded Debt................................................... 5
Guarantee..................................................... 5
</TABLE>
- ----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Holder........................................................ 6
Incur......................................................... 6
Indenture..................................................... 6
Interest...................................................... 7
Interest Payment Date......................................... 7
Investment Grade.............................................. 7
Lien.......................................................... 7
Maturity...................................................... 7
Moody's....................................................... 7
Officers' Certificate......................................... 7
Opinion of Counsel............................................ 7
Original Issue Discount Security.............................. 7
Outstanding................................................... 7
Paying Agent.................................................. 8
Permitted Liens............................................... 9
Person........................................................ 9
Place of Payment.............................................. 9
Predecessor Security.......................................... 9
Principal Property............................................ 9
Redemption Date............................................... 9
Redemption Price.............................................. 9
Regular Record Date........................................... 9
Restricted Payment............................................ 10
Restricted Subsidiary......................................... 10
S&P........................................................... 10
Sale and Leaseback Transaction................................ 10
Securities.................................................... 10
Security Register and Security Registrar...................... 10
Special Record Date........................................... 10
Stated Maturity............................................... 10
Subsidiary.................................................... 10
Trust Indenture Act........................................... 10
Trustee....................................................... 11
U.S. Government Obligation.................................... 11
Vice President................................................ 11
Voting Stock.................................................. 11
Wholly-Owned Restricted Subsidiary............................ 11
</TABLE>
- ----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iii
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 1.2 Compliance Certificates and Opinions..................... 12
Section 1.3 Form of Documents Delivered to Trustee................... 12
Section 1.4 Acts of Holders; Record Dates............................ 13
Section 1.5 Notices, Etc. to Trustee and Company..................... 14
Section 1.6 Notice to Holders; Waiver................................ 14
Section 1.7 Conflict with Trust Indenture Act........................ 15
Section 1.8 Effect of Headings and Table of Contents................. 15
Section 1.9 Successors and Assigns................................... 15
Section 1.10 Separability Clause...................................... 15
Section 1.11 Benefits of Indenture.................................... 15
Section 1.12 Governing Law............................................ 15
Section 1.13 Legal Holidays........................................... 15
ARTICLE II
Security Forms
Section 2.1 Forms Generally.......................................... 16
Section 2.2 Form of Trustee's Certificate of Authentication.......... 16
ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series..................... 17
Section 3.2 Denominations............................................ 19
Section 3.3 Execution, Authentication, Delivery and Dating........... 19
Section 3.4 Temporary Securities..................................... 21
Section 3.5 Registration, Registration of Transfer and Exchange...... 21
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities......... 23
Section 3.7 Payment of Interest; Interest Rights Preserved........... 24
Section 3.8 Persons Deemed Owners.................................... 25
Section 3.9 Cancellation............................................. 25
Section 3.10 Computation of Interest.................................. 26
Section 3.11 CUSIP Numbers............................................ 26
</TABLE>
- ----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
<PAGE>
<TABLE>
<CAPTION>
ARTICLE IV
Satisfaction and Discharge
<S> <C>
Section 4.1 Satisfaction and Discharge of Indenture.................. 26
Section 4.2 Application of Trust Money............................... 27
ARTICLE V
Remedies
Section 5.1 Events of Default........................................ 28
Section 5.2 Acceleration of Maturity; Rescission and Annulment....... 30
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................. 31
Section 5.4 Trustee May File Proofs of Claim......................... 31
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities............................................... 32
Section 5.6 Application of Money Collected........................... 32
Section 5.7 Limitation on Suits...................................... 33
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................... 33
Section 5.9 Restoration of Rights and Remedies....................... 33
Section 5.10 Rights and Remedies Cumulative........................... 34
Section 5.11 Delay or Omission Not Waiver............................. 34
Section 5.12 Control by Holders....................................... 34
Section 5.13 Waiver of Past Defaults.................................. 35
Section 5.14 Undertaking for Costs.................................... 35
Section 5.15 Waiver of Stay or Extension Laws......................... 35
ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities...................... 36
Section 6.2 Notice of Defaults....................................... 36
Section 6.3 Certain Rights of Trustee................................ 36
Section 6.4 Not Responsible for Recitals or Issuance of Securities... 37
Section 6.5 May Hold Securities...................................... 38
Section 6.6 Money Held in Trust...................................... 38
Section 6.7 Compensation and Reimbursement........................... 38
Section 6.8 Disqualification; Conflicting Interests.................. 39
</TABLE>
- ----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
v
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 6.9 Corporate Trustee Required; Eligibility.................. 39
Section 6.10 Resignation and Removal; Appointment of Successor........ 39
Section 6.11 Acceptance of Appointment by Successor................... 41
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business................................................. 42
Section 6.13 Preferential Collection of Claims Against Company........ 42
Section 6.14 Appointment of Authenticating Agent...................... 43
Section 6.15 Trustee's Application for Instructions from the Company.. 45
ARTICLE VII
Holders' Lists and Reports
by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of
Holders.................................................. 45
Section 7.2 Preservation of Information; Communications to Holders... 45
Section 7.3 Reports by Trustee....................................... 46
Section 7.4 Reports by Company....................................... 46
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms...... 47
Section 8.2 Successor Substituted.................................... 48
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders....... 48
Section 9.2 Supplemental Indentures with Consent of Holders.......... 49
Section 9.3 Execution of Supplemental Indentures..................... 51
Section 9.4 Effect of Supplemental Indentures........................ 51
Section 9.5 Conformity with Trust Indenture Act...................... 51
Section 9.6 Reference in Securities to Supplemental Indentures....... 51
</TABLE>
- ----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vi
<PAGE>
<TABLE>
<CAPTION>
ARTICLE X
Covenants
<S> <C>
Section 10.1 Payment of Principal, Premium and Interest............... 52
Section 10.2 Maintenance of Office or Agency.......................... 52
Section 10.3 Money for Securities Payments to Be Held in Trust........ 52
Section 10.4 Statement by Officers as to Default...................... 53
Section 10.5 Existence................................................ 54
Section 10.6 Restrictions on Secured Debt............................. 54
Section 10.7 Limitation on Sales and Leasebacks....................... 55
Section 10.8 Limitations on Restricted Payments....................... 56
Section 10.9 Limitations on Transactions with Affiliates.............. 57
Section 10.10 Waiver of Certain Covenants.............................. 58
Section 10.11 Provision of Financial Information....................... 58
Section 10.12 Calculation of Original Issue Discount................... 58
Section 10.13 Appointments to Fill Vacancies in Trustee's Office....... 59
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article................................. 59
Section 11.2 Election to Redeem; Notice to Trustee.................... 59
Section 11.3 Selection by Trustee of Securities to Be Redeemed........ 59
Section 11.4 Notice of Redemption..................................... 60
Section 11.5 Deposit of Redemption Price.............................. 61
Section 11.6 Securities Payable on Redemption Date.................... 61
Section 11.7 Securities Redeemed in Part.............................. 61
ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article................................. 62
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.... 62
Section 12.3 Redemption of Securities for Sinking Fund................ 62
</TABLE>
- ----------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
vii
<PAGE>
<TABLE>
<CAPTION>
ARTICLE XIII
Defeasance and Covenant Defeasance
<S> <C>
Section 13.1 Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.............. 63
Section 13.2 Defeasance and Discharge................................. 63
Section 13.3 Covenant Defeasance...................................... 64
Section 13.4 Conditions to Defeasance or Covenant Defeasance.......... 64
Section 13.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provision....... 66
Section 13.6 Reinstatement............................................ 66
</TABLE>
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
viii
<PAGE>
INDENTURE, dated as of July 1, 1996 between Ryerson Tull, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 2621 West 15th
Place, Chicago, Illinois 60608, and The Bank of New York, a New York banking
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) Unless otherwise specified herein, all accounting terms used in
this Indenture are to be interpreted, all accounting determinations under
this Indenture are to be made, and all financial statements required
hereunder are to be prepared (except for changes concurred in by the
Company's independent public accountants) in accordance with generally
accepted accounting principles applied on a basis consistent with the
1
<PAGE>
audited consolidated financial statements of the Company as of December 31,
1995; provided that, if the Company or any Restricted Subsidiary has
adopted since such date or adopts at any time after the date of this
Indenture a change in accounting principles from those used in preparing
such consolidated financial statements that affects in any material respect
the computation of or compliance with any of the covenants contained in
this Indenture, then, unless this Indenture shall have been amended to
modify the covenants in this Indenture to take account of such change in
accounting principles, the Company shall continue to compute all financial
restrictions and ratios contained in such covenants based on accounting
principles in effect prior to the adoption of such change; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with any specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" by the Company or any of its Restricted
Subsidiaries means any sale, lease, conveyance, transfer or other disposition
(including, without limitation, by way of a merger, consolidation, spin-off,
sale of Capital Stock or otherwise) of (i) the shares of Capital Stock of a
Restricted Subsidiary of the Company (other than directors' qualifying shares),
(ii) substantially all of the assets representing a division or line of the
business of the Company or any of its Restricted Subsidiaries or (iii) other
assets of the Company or any of its Restricted Subsidiaries outside of the
ordinary course of business (each referred to for the purposes of this
definition as a "disposition"), in each case by the Company or any of its
Restricted Subsidiaries (other than a disposition by such a Restricted
Subsidiary to the Company or by the Company to a Restricted Subsidiary or by a
Restricted Subsidiary to another Restricted Subsidiary).
"Attributable Debt" means, with respect to a lease in a Sale and
Leaseback Transaction, the total net amount of rent required to be paid during
the remaining primary term of such lease, discounted at a rate per annum equal
to the interest rate implicit in such lease, calculated in accordance with
generally accepted accounting practices. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be
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paid on account of maintenance, repairs, insurance, taxes, assessments, utility,
operating and labor costs and similar charges.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security issued to the Depository or its
nominee, and registered in the name of such Depository or nominee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease Obligations" of any Person means the obligations to pay
rent or other amounts under a lease of (or other Debt arrangements conveying the
right to use) real or personal property of such Person that are required to be
classified and accounted for as a capital lease or a liability on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles, and the amount of such obligations shall be the capitalized amount
thereof in accordance with generally accepted accounting principles and the
stated maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participation, including partnership interests, whether general or
limited, of such Person.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Income" of the Company means for any period the
consolidated net income (or loss) of the Company and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with generally
accepted accounting principles, provided that there shall be excluded therefrom
(i) the net income (or loss) of any Person acquired by the Company or a
Restricted Subsidiary in a pooling-of-interests transaction for any period prior
to the date of such transaction, (ii) the net income (but not net loss) of any
Restricted Subsidiary which is subject to restrictions which prevent the payment
of dividends or the making of distributions to the Company to the extent of such
restrictions, (iii) the net income (or loss) of any Person that is not a
Restricted Subsidiary except to the extent of the amount of dividends or other
distributions actually paid to the Company by such Person during such period,
(iv) gains or losses on Asset Dispositions by the Company or its Restricted
Subsidiaries and (v) all extraordinary gains and extraordinary losses.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets of the Company and its Restricted Subsidiaries after deducting (i) all
current liabilities other than commercial paper, short-term bank debt and
current maturities of long-term debt and (ii) all goodwill and other
intangibles.
"Consolidated Net Worth" means the consolidated stockholders' equity
of the Company and its Restricted Subsidiaries, less amounts attributable to
Disqualified Stock.
"Corporate Trust Office" means the principal office of the Trustee in
New York, at which at any particular time its corporate trust business shall be
administered, which currently is located at 101 Barclay Street, 21 West, New
York, New York 10286.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Debt" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations Incurred in connection with the
acquisition of property, assets or businesses, (iii) every reimbursement
obligation of such Person with respect to letters of credit, bankers'
acceptances or similar
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facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business that are not overdue by more than 90 days or that
are being contested in good faith), (v) every Capital Lease Obligation of such
Person, (vi) the maximum fixed redemption or repurchase price of Disqualified
Stock of such Person, (vii) every obligation of such Person under interest rate
swap or similar agreements, or foreign currency or commodity hedge, exchange or
similar agreements of such Person, (viii) the Attributable Debt with respect to
any Sale and Leaseback Transaction to which such Person is a party and (ix)
every obligation of the type referred to in clauses (i) through (viii) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed or is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 3.1, initially The Depository Trust Company, its nominees
and their respective successors, which Person shall be a clearing agency
registered under the Securities Exchange Act of 1934, as amended.
"Disqualified Stock" means, with respect to Securities of any series,
any Capital Stock that, by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable in cash, pursuant to a sinking fund
obligation or otherwise, or is redeemable in cash at the option of the holder
thereof, in whole or in part, on or prior to the date on which the Securities of
such series mature; provided, however, that Disqualified Stock shall not include
any Capital Stock held by or issued in connection with an employee benefit plan
or program in which employees or directors of the Company or any Subsidiary of
the Company participate.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means (i) all Debt having a maturity of more than 12
months from the date as of which the determination is made or having a maturity
of 12 months or less but by its terms being renewable or extendible beyond 12
months from such date at the option of any obligor thereon and (ii) Capital
Lease Obligations payable more than 12 months from such date (such Capital Lease
Obligations to be included as Funded Debt at the amount so capitalized at the
date of such computation and to be included for the purposes of the definition
of Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person (the
"primary obligor") in any manner,
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whether directly or indirectly, and including, without limitation, any
obligation of such Person, directly or indirectly (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to purchase
(or to advance or supply funds for the purchase of) any interest in or security
for the payment of such Debt, (ii) to purchase property, securities or services
for the purpose of assuring the holder of such Debt of the payment of such Debt
or (iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Debt (and "Guaranteed" and "Guaranteeing" shall have
meanings correlative to the foregoing); provided, however, that a Guarantee by
any Person shall not include endorsements by such Person for collection or
deposit, in either case, in the ordinary course of business; and provided,
further, that the term "Guarantee" shall not include contracts made in the
ordinary course of business of the Company and its Restricted Subsidiaries for
the purchase of utilities, services and raw materials that require payment to be
made to the provider of utilities, services or raw materials regardless of
whether delivery is ever made of such utilities, services or raw materials so
long as the quantities of utilities, services or raw materials purchased under
each such contract do not exceed the Company's or its contracting Restricted
Subsidiary's reasonably anticipated consumption thereof on the date of the
contract. The amount of a Guarantee shall be equal to the amount of the
obligation covered thereby.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to generally accepted accounting
principles or otherwise, of any such Debt or other obligation on the balance
sheet of any such Person (and "Incurrence," "Incurred," "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Debt shall not
be deemed an Incurrence of such Debt, and "Incur" means with respect to any
Lien, to create, incur or assume such Lien on any asset or property (and
"Incurrence," "Incurred," "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing).
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.1.
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"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment Grade" means Baa3 or better in the case of a rating from
Moody's and BBB- or better in the case of a rating from S&P.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement, or any equivalent of any of the foregoing under the
laws of any applicable jurisdiction, on or with respect to such property or
assets (including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing); provided, however, that Lien shall not include a Permitted Lien.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Moody's" mean Moody's Investors Service, Inc. or any successor
thereto.
"Officers' Certificate" means a certificate signed on behalf of the
Company by its Chairman of the Board, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee. One of the officers signing
an Officers' Certificate given pursuant to Section 10.4 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of the Company, and who shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
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(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided, however, that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities as to which defeasance has been effected pursuant to
Section 13.2; and
(iv) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (i) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section 5.2,
(ii) if, as of such date, the principal amount payable at the Stated Maturity of
a Security is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined
as contemplated by Section 3.1, (iii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 3.1 on the date of original issuance of such Security, of the principal
amount (or, in the case of a Security described in clause (i) or (ii) above, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) or (ii) above) of such Security and (iv)
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
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"Permitted Liens" means (i) deposits, liens or pledges of personal
property to enable the Company or a Restricted Subsidiary to exercise any
privilege or license, or to secure payments of worker's compensation,
unemployment insurance or social security obligations, or to secure the
performance of contracts or leases to which the Company or a Restricted
Subsidiary is a party, or to secure public or statutory obligations of the
Company or a Restricted Subsidiary, or other similar deposits, liens, or pledges
of personal property made in the ordinary course of business, (ii) mechanics',
workmen's, repairmen's or carriers' liens, or other similar liens arising in the
ordinary course of business, or deposits, liens or pledges of personal property
to obtain the release of any such liens, (iii) liens for taxes, assessments and
other governmental charges not delinquent or the payment of which is being
contested by the Company or a Restricted Subsidiary in good faith and (iv)
bankers' liens and rights of setoff arising in the ordinary course of business
of the Company or any Restricted Subsidiary under common law or by statute.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any facility owned by the Company or any
Subsidiary the gross book value of which (including related land, improvements,
machinery and equipment so owned, without deduction of any depreciation
reserves) on the date as of which the determination is being made exceeds 2% of
Consolidated Net Tangible Assets.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.1.
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"Restricted Payment" has the meaning specified in Section 10.8.
"Restricted Subsidiary" means any Subsidiary of the Company which owns
a Principal Property and any other Subsidiary designated as a Restricted
Subsidiary by the Board of Directors.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc., or any successor thereto.
"Sale and Leaseback Transaction" means an arrangement with any lender
or investor or to which any lender or investor is a party providing for the
leasing by such Person of any property or asset of such Person that has been or
is being sold or transferred by such Person more than 180 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that if the Trust Indenture
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Act of 1939 is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" means (x) any security that is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States of America, that, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation that is specified in
clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any U.S.
Government Obligation that is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" means Capital Stock which ordinarily has voting power
for the election of directors (or persons performing similar functions), whether
at all times or only so long as no senior class of securities has such voting
power by reason of any contingency.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock of which (other
than directors' qualifying shares) shall at the time be owned by such Person or
by one or more Wholly-Owned Restricted Subsidiaries of such Person or by such
Person and one or more Wholly-Owned Restricted Subsidiaries of such Person.
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Section 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture. In the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, however, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in
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the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
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(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 1.5 Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument, Attention: Corporate Secretary or at any other address previously
furnished in writing to the Trustee by the Company.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall
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be made as shall be satisfactory to the Trustee shall constitute a sufficient
notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities 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.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York without giving effect to
the conflict of laws provisions thereof.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any
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other provision of this Indenture or of the Securities (other than a provision
of the Securities of any series which specifically states that such provision
shall apply in lieu of this Section)) payment of interest or principal (and
premium, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity; provided, however, that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
ARTICLE II
Security Forms
Section 2.1 Forms Generally.
The Securities of each series shall be substantially in the form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depository
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
Dated:__________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
As Trustee
By:________________________________
Authorized Signatory
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ARTICLE III
The Securities
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which,
pursuant to Section 3.3, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue, the Interest
Payment Dates on which any such interest shall be payable and the Regular Record
Date for any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part,
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at the option of the Company and, if other than by a Board Resolution, the
manner in which any election by the Company to redeem the Securities shall be
evidenced;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
1.1;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index or formula, the manner in which such amounts shall be determined;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on Securities of such series as to which such election is made shall be payable,
and the periods within which and the terms and conditions upon which such
election is to be made;
(13) the application, if any, of Section 13.2 or 13.3 or both to the
Securities of any series and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be evidenced;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal amount
shall be determined);
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(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case, the
Depository with respect to such Book-Entry Security or Securities and the
circumstances under which any Book-Entry Security may be registered for transfer
or exchange, or authenticated and delivered, in the name of a Person other than
such Depository or its nominee, if other than as set forth in Section 3.5;
(16) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2;
(17) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.1 or covenants of the Company set forth in
Article X pertaining to the Securities of the series and any change in the right
of the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.2; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 3.3) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 3.1. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make available for delivery such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.1, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 3.1, that such terms have
been established in conformity with the provisions of this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered
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at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and made available for delivery hereunder.
Notwithstanding the foregoing, if any Security shall have been authenticated and
made available for delivery hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.9, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and made available for delivery
hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
made available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange therefor
one or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security
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Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series as
designated pursuant to Section 10.2, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.3 and ending
at the close of business on the day of such mailing or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
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Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable in whole or in part pursuant to this Section 3.5 for Securities
registered in the name of Persons other than the Depository for such Security or
its nominee only if (i) such Depository notifies the Company that it is
unwilling or unable to continue as Depository for such Book-Entry Security or if
at any time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (ii) the Company executes and
delivers to the Trustee a Company Order that such Book-Entry Security shall be
so exchangeable, (iii) there shall have occurred and be continuing an Event of
Default with respect to the Securities or (iv) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 3.1. Any Book-Entry
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Securities registered in such names as such Depository shall
direct.
Notwithstanding any other provision in this Indenture, a Book-Entry
Security may not be transferred except as a whole by the Depository with respect
to such Book-Entry Security to a nominee of such Depository or by a nominee of
such Depository to such Depository or another nominee of such Depository.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Book-entry Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6 or 11.7
or otherwise, shall be authenticated and delivered in the form of, and shall be,
a Book-entry Security, unless such Security is registered in the name of a
Person other than the Depositary for such Book-entry Security or a nominee
thereof.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company
may require the payment by the Holder of such mutilated, destroyed, lost or
stolen Security of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.1 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall irrevocably deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the
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notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder of
Securities of such series in the manner set forth in Section 1.6, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 3.7) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
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Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities held by the Trustee shall be destroyed and a
certificate of destruction delivered by the Trustee to the Company, unless the
Company otherwise directs the Trustee by a Company Order.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose and amount sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
Subject to provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
Remedies
Section 5.1 Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) failure to perform or comply with the provisions set forth under
Section 8.1; or
(4) default in the deposit of any sinking fund or other payment
required pursuant to the terms of a Security of that series as established
pursuant to Section 3.1(8), when and as due by the terms of a Security of
that series; or
(5) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series, provided that for purposes of this clause (5) any covenant or
agreement on the part of the Company contained in this Indenture which is
not limited to a series of Securities shall be in respect of all series of
Securities), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holder or
Holders of at least 10% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(6) a default or defaults under any bonds, debentures, notes or other
evidences of, or obligations constituting, Debt of the Company or any
Restricted Subsidiary (other than Securities of that series) or under any
mortgages, indentures, instruments (including this Indenture) or agreements
under which there may be issued or existing or by which there may be
secured or evidenced any Debt of the Company or any Restricted
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Subsidiary, in any such case with a principal or similar amount then
outstanding, individually or in the aggregate, in excess of $25,000,000,
whether such Debt exists as of the date of this Indenture or is thereafter
created, which default or defaults constitute a failure to pay any portion
of the principal or similar amount of such Debt when due and payable or
which would enable the holder thereof to cause such Debt to become due and
payable prior to the date on which it would otherwise have become due and
payable; or
(7) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any of its Restricted Subsidiaries
individually or in the aggregate, in excess of $25,000,000, which remains
unstayed, undischarged or unbonded for a period of 60 days thereafter; or
(8) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Restricted
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Restricted Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any Restricted Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days; or
(9) the commencement by the Company or any Restricted Subsidiary of
a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of
the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Restricted Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company or any Restricted Subsidiary in furtherance of any such action;
or
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(10) any event which constitutes an "Event of Default" under the
terms governing Securities of that series established as provided in
Section 3.1.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified
in Section 5.1(8) or (9)) with respect to Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holder
or Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Outstanding Securities of that series to
be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable. If an Event of Default specified in Section 5.1(8) or (9) with
respect to Securities of any series of any time outstanding occurs and is
continuing, the principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such portion of the
principal amount of such Securities as may be specified in the terms
thereof) of all of the Outstanding Securities of that series shall become
immediately due and payable without any declaration or other act on the
part of the Trustee or any Holders of that series.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or irrevocably deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
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and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
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such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 6.7.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
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Section 5.7 Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 3.7)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any
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reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Trustee.
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 5.1(5) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action
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hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any and all loss, damage, liability or expense, including taxes (other than
taxes based on the income of the Trustee), incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
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When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(8) or Section 5.1(9), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
Section 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act, and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in the Borough of Manhattan, The City of New York or in The City of
Chicago, Illinois. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
such Act of such Holders, the removed Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, unless the Trustee's duty to
resign is stayed in accordance with the provisions of Section 310(b) of the
Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after such removal of the
Trustee described in clauses (i) and (ii) of the immediately preceding sentence,
the removed Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by
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Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
1.6. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as
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shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraphs (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
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Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.6, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
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hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:_____________
The Bank of New York,
As Trustee
By:
-----------------------------
As Authenticating Agent
By:
-----------------------------
Authorized Signatory
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Section 6.15 Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE VII
Holders' Lists and Reports
by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Securities of such series as of such Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-annually, upon such
dates as are set forth in the Board Resolution or supplemental indenture
authorizing such series; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.1 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
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(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within 60 days after each February 1 following the date of this Indenture
deliver to Holders a brief report, dated as of such February 1, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when any Securities are listed on any
stock exchange.
Section 7.4 Reports by Company.
(a) The Company covenants and agrees to file with the Commission and
provide the Trustee and Holders of Securities such information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended, shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports, if
any, with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations.
(c) The Company covenants and agrees to transmit by mail to all
Holders, as the names and addresses of such Holders appear upon the register of
the Company, within 30 days after the filing thereof with the Trustee, such
summaries of information, documents and reports
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required to be filed by the Company, if any, pursuant to subsections (a) and (b)
of this Section 7.4 as may be required by rules and regulations prescribed from
time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance,
Transfer or Lease
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer or lease or otherwise dispose of all or substantially
all of its properties and assets to any Person or group of Affiliated Persons,
or permit any of its Restricted Subsidiaries to enter into any such transaction
or transactions, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in a transaction in which the Company does not survive or in
which the Company sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets, the successor entity to
the Company shall be organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every obligation of
this Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such transaction
and treating any Debt that becomes an obligation of the Company or a
Restricted Subsidiary as a result of such transaction as having been
incurred by the Company or such Restricted Subsidiary at the time of such
transaction, no Event of Default or event that with the passing of time or
the giving of notice, or both, would constitute an Event of Default shall
have occurred and be continuing;
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(3) if, as a result of any such transaction, properties or assets of
the Company or any Restricted Subsidiary would become subject to a Lien
prohibited by Section 10.6, the Company or such successor entity to the
Company, as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities as required by such Section 10.6; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any sale, assignment, conveyance, transfer or
lease of substantially all the properties and assets of the Company in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such sale, assignment,
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein; and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for
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the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided, that
any such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
10.6 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided that such action pursuant to this clause (9)
shall not adversely affect the interests of the Holders of Securities of
any series.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a
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Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or
(2) reduce the principal amount thereof or the rate of interest
thereon or the rate of accretion of any Original Issue Discount Security or
any premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 5.2, or
(3) change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
(4) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(5) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(6) modify any of the provisions of this Section, Section 5.8,
Section 5.13 or Section 10.11, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 10.11, or the deletion of this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.1(8), or
(7) modify any provision of this Indenture relating to the
modification and amendment of this Indenture or the waiver of past defaults
or covenants, except as otherwise specified in this Indenture, in a manner
adverse to the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular
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series of Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE X
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such
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sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 10.4 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall
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be in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 10.5 Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 10.6 Restrictions on Secured Debt.
The Company will not, nor will it permit any Restricted Subsidiary to,
Incur any Debt secured by a Lien on any (i) Principal Property or any part
thereof, (ii) Capital Stock of a Restricted Subsidiary now owned or hereafter
acquired by the Company or by any Restricted Subsidiary or (iii) Debt of a
Restricted Subsidiary owed to the Company or to any Restricted Subsidiary,
without in any such case under clause (i), (ii) or (iii) effectively providing
concurrently with such Incurrence that the Outstanding Securities of any series
to which this Section 10.6 applies (pursuant to Section 3.1) (together with, if
the Company shall so determine, any other Debt of the Company or such Restricted
Subsidiary then existing or thereafter created which is not subordinated to the
Securities) are secured equally and ratably with (or, at the Company's option,
prior to) such secured Debt and any other Debt required to be so secured, unless
the aggregate amount of all such secured Debt outstanding at such time, plus all
Attributable Debt of the Company and its Restricted Subsidiaries with respect to
Sale and Leaseback Transactions involving Principal Properties outstanding at
such time (with the exception of such transactions that are excluded as
described pursuant to clauses (1) to (4) of Section 10.7), would not exceed 10%
of Consolidated Net Tangible Assets; provided, however, that this Section 10.6
shall not apply to, and there shall be excluded from Debt in any computation
under this Section 10.6:
(1) Debt secured by a Lien in favor of the Company or a Restricted
Subsidiary;
(2) Debt secured by a Lien in favor of governmental bodies to secure
progress or advance payments or payments pursuant to contracts or statute;
(3) Debt secured by a Lien on property, Capital Stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger, consolidation or otherwise) and not Incurred in anticipation
thereof;
(4) Debt Incurred or Guaranteed to finance the acquisition of
property, Capital Stock or Debt, or to finance construction on, or
improvement or expansion of, property,
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which Debt is Incurred within 180 days of such acquisition or completion of
construction, improvement or expansion, and is secured solely by a Lien on
the property, Capital Stock or Debt acquired, constructed, improved or
expanded;
(5) Debt consisting of industrial revenue or pollution control bonds
or similar financing secured solely by a Lien on the property the subject
thereof;
(6) secured Debt outstanding on the date of the Indenture; or
(7) any extension, renewal, refunding or replacement of any Debt
referred to in clauses (3), (4) and (6) of this Section 10.6.
Section 10.7 Limitation on Sales and Leasebacks.
Neither the Company nor any Restricted Subsidiary shall enter into any
Sale and Leaseback Transaction involving any Principal Property or any part
thereof unless the aggregate amount of all Attributable Debt of the Company and
its Restricted Subsidiaries with respect to such transactions outstanding at
such time, plus all secured Debt outstanding at such time to which the
restriction described in Section 10.6 applies, would not exceed 10% of
Consolidated Net Tangible Assets; provided, however, that this Section 10.7
shall not apply to, and there shall be excluded in any computation under Section
10.6 or this Section 10.7 of Attributable Debt with respect to, any Sale and
Leaseback Transaction if:
(1) the lease is for a period of not in excess of three years,
including renewal rights;
(2) the lease secures or relates to industrial revenue or pollution
control bonds or similar financing;
(3) the transaction is between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries; or
(4) the Company or such Restricted Subsidiary, within 270 days after
the sale is completed, applies an amount equal to the greater of (i) the
net proceeds of the sale of the Principal Property or part thereof leased
pursuant to such arrangement or (ii) the fair market value of the Principal
Property or part thereof leased at the time of entering into such
arrangement (as determined by the President and Chief Executive Officer or
the Treasurer) either to (a) the retirement (or open market purchase) of
Securities, other Funded Debt of the Company ranking on a parity with or
senior to Securities or Funded Debt of a Restricted Subsidiary or (b) the
purchase by the Company or any Restricted Subsidiary of other property,
plant or equipment related to the business of the Company or any Restricted
Subsidiary having a value at least equal to the value of the Principal
Property or part thereof leased.
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Section 10.8 Limitations on Restricted Payments.
The Company will not, nor will it permit any Restricted Subsidiary to,
directly or indirectly (i) declare or pay any dividend or make any distribution
on account of the Company's Capital Stock (other than dividends or distributions
payable in Capital Stock (other than Disqualified Stock) of the Company or
dividends or distributions payable to the Company or any Wholly-Owned Restricted
Subsidiary of the Company), (ii) purchase, redeem or otherwise acquire or retire
for value any Capital Stock of the Company other than any such Capital Stock
owned by the Company or any Wholly-Owned Restricted Subsidiary of the Company or
(iii) redeem, defease (including, but not limited to, legal or covenant
defeasance), repurchase, retire or otherwise acquire or retire for value prior
to any scheduled maturity, repayment or sinking fund payment, Debt of the
Company (other than the Securities of that series) that is subordinate in right
of payment to Securities (all such payments and other actions set forth in
clauses (i), (ii) and (iii) above being collectively referred to as "Restricted
Payments"), unless, at the time of such Restricted Payment:
(a) no Event of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default shall have
occurred and be continuing or would occur as a consequence thereof; and
(b) upon giving effect to such Restricted Payment on a pro forma
basis (the value of any such payment, if other than cash, being determined
by the Board of Directors and evidenced by a resolution set forth in an
Officers' Certificate delivered to the Trustee) the Consolidated Net Worth
of the Company would exceed:
(I) if the long-term unsecured Debt of the Company is not rated
Investment Grade by each of Moody's and S&P, the sum of (x)
$250,000,000 and (y) an amount equal to the greater of zero and 50% of
cumulative Consolidated Net Income of the Company since June 30, 1996;
or
(II) if the long-term unsecured Debt of the Company is rated
Investment Grade by each of Moody's and S&P, the amount determined
pursuant to Section 10.8(b)(I) as of the last day of the most recent
fiscal quarter prior to the date on which such debt became so rated by
each of Moody's and S&P.
The foregoing restrictions in this Section 10.8 will not prohibit (i)
the payment of any dividend within 60 days after the date of declaration
thereof, if at said date of declaration such payment would have complied with
the provisions of this Indenture, (ii) the redemption, repurchase, retirement or
other acquisition of any Capital Stock of the Company in exchange for, or out of
the proceeds of, the substantially concurrent sale (other than to a Restricted
Subsidiary of the Company) of other Capital Stock of the Company (other than any
Disqualified Stock), (iii) the repurchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company held by any member of
the Company's (or any of its Restricted Subsidiaries')
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management or any director of the Company pursuant to any management equity
subscription agreement, stock option agreement or other employee benefit plan or
program, (iv) payments not exceeding $15,000,000 in the aggregate in any twelve
month period with respect to dividends on any series of preferred stock of the
Company (other than Disqualified Stock) issued after the date of this Indenture,
(v) any redemption by the Company of any series of preferred stock of the
Company or Debt of the Company which is convertible into common stock of the
Company if at the time of such redemption the Company has an underwriting
commitment on customary terms from a nationally recognized broker-dealer to
purchase all shares of such series of preferred stock or convertible Debt (or
shares of common stock into which such preferred stock or convertible Debt is
convertible) which are not converted as of the redemption date and (vi) any
Restricted Payment made in connection with any merger, consolidation or sale
permitted under Article VIII; provided that in the case of any transaction under
clause (iii) or (iv) above, no Event of Default or event that with the passing
of time or the giving of notice, or both, would constitute an Event of Default
shall have occurred and be continuing immediately after such transaction.
Section 10.9 Limitations on Transactions with Affiliates.
The Company will not, nor will it permit any Restricted Subsidiary to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make any contract,
agreement, understanding, loan, advance or guarantee with or for the benefit of,
any Affiliate unless (i) such transaction or series of transactions is on terms
that are no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than would be available in a comparable transaction with an
unrelated third party and (ii) the Company delivers to the Trustee, except with
respect to the purchase or sale of products from or to Inland Steel Industries,
Inc. or any of its Affiliates, (a) with respect to a transaction or series of
transactions involving aggregate payments in excess of 1% of Consolidated Net
Tangible Assets, a Board Resolution set forth in an Officers' Certificate
certifying that such transaction complies with clause (i) above and has been
approved by a majority of the independent members of the Board of Directors, and
(b) with respect to a transaction or series of transactions involving aggregate
payments equal to or greater than 4% of Consolidated Net Tangible Assets, the
Company receives a written opinion from a nationally recognized expert that such
transaction or series of transactions is fair to the Company from a financial
point of view; provided that (i) employment agreements, (ii) transactions
between or among the Company and its Restricted Subsidiaries or between or among
its Restricted Subsidiaries, (iii) transactions permitted by Section 10.8 and
(iv) arrangements with Affiliates in effect as of the date of this Indenture,
including any renewal, restructuring, amendment, refinancing or modification of
any such arrangement which does not materially adversely affect the interests of
the Holders of Securities in the reasonable judgment of the Company, in each
case, will not be subject to this Section 10.9.
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Section 10.10 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.6 to 10.9, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 10.11 Provision of Financial Information.
Whether or not the Company is required to be subject to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended, or any successor
provision thereto, the Company shall file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provision thereto if the Company were so required, such documents
to be filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so to
file such documents if the Company were so required. The Company shall also in
any event (a)(i) promptly upon written request transmit by mail to any Holders
of Outstanding Securities, as their names and addresses appear in the Security
Register, and to any prospective holder, without cost to such holders, and (ii)
within 15 days of each Required Filing Date, file with the Trustee, copies of
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act or any successor provisions thereto if the Company
were required to be subject to such Sections and (b) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act, (i)
promptly upon written request supply copies of such documents to any Holder and
prospective holder and (ii) file copies of such documents with the Trustee.
Section 10.12 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year.
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Section 10.13 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of the Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
ARTICLE XI
Redemption of Securities
Section 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 3.1 for such Securities. In case of any redemption at the election
of the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
Section 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series. If less than
all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including, subject to Section 3.11, the CUSIP number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
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Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 11.5 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.1, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities of the same series
and of like tenor, of any authorized denomination as requested by such Holder,
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a Book-Entry
Security is so surrendered, such new Security so issued shall be a new Book-
Entry Security.
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ARTICLE XII
Sinking Funds
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 45 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the
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expense of the Company in the manner provided in Section 11.4. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
Defeasance and Covenant Defeasance
Section 13.1 Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.1 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 13.2 or (b) covenant
defeasance of the Securities of a series under Section 13.3, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article XIII, shall be applicable to the Securities of such
series, and the Company may at its option by Board Resolution or in another
manner specified as contemplated by Section 3.1 for such Securities, at any
time, with respect to the Securities of such series, elect to have either
Section 13.2 (if applicable) or Section 13.3 (if applicable) be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article XIII.
Section 13.2 Defeasance and Discharge.
Upon the Company's exercise of the above option (if any) applicable to
this Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions precedent set
forth below are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such series
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged thereunder: (A) the rights of Holders of Outstanding Securities
of such series to receive, solely from the trust fund described in Section 13.4
as more fully set forth in such Section, payments of the principal of (and
premium and interest, if any, on) such Securities when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
3.4, 3.5, 3.6, 10.2 and 10.3 and such obligations as shall be ancillary thereto,
(C) the rights, powers, trusts, duties, immunities and other provisions in
respect of the Trustee hereunder and (D) this Article XIII. Subject to
compliance with this Article XIII, the Company may exercise its option under
this Section 13.2 notwithstanding the prior exercise of its option under Section
13.3 with respect to the Securities of such series.
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Section 13.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 8.1,
10.6, 10.7, 10.8 and 10.9 (and any covenant applicable to such Securities that
are determined pursuant to Section 3.1 to be subject to this provision) and the
occurrence of an event specified in Section 5.1(3) and (5) (with respect to any
of Sections 8.1, 10.6, 10.7, 10.8 or 10.9) (and any other Event of Default
applicable to such Securities that are determined pursuant to Section 3.1 to be
subject to this provision) shall not be deemed to be an Event of Default with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or clause whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or clause or by reason of any
reference in any such Section or clause to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
Section 13.2 or Section 13.3 to the Outstanding Securities of such series, as
the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.9 who shall agree to comply with the provisions of this
Article XIII applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
the principal of (and premium and interest, if any on) the Outstanding
Securities of such series on the Stated Maturity of such principal, or
premium and interest, if any. Before such a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date or dates in accordance with Article XI, which shall be
given effect in applying the foregoing.
(2) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities of
such series shall have
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occurred and be continuing (A) on the date of such deposit or (B) insofar
as subsections 5.1(8) and 5.1(9) are concerned, at any time during the
period ending on the 90th day after the date of such deposit (it being
understood that the condition in this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act with respect to any securities of
the Company or (B) result in the trust arising from such deposit to
constitute, unless it is qualified as, a regulated investment company under
the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 13.2 with respect to any
series of Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (x) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (y) since
the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge to be effected with respect to such Securities and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such deposit, defeasance
and discharge were not to occur.
(6) In the case of an election under Section 13.3 with respect to any
series of Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such deposit and covenant
defeasance were not to occur.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 3.1.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 13.2
or the covenant defeasance under Section 13.3 (as the case may be) have
been complied with.
65
<PAGE>
Section 13.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 13.5, the "Trustee") pursuant to Section 13.4 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 13.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 13.4 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as the case may be, with
respect to such Securities.
Section 13.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article XIII with respect to any Securities by reason of
any order or judgment or any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article XIII until such time as the Trustee or Paying Agent is permitted to
apply all such money held in trust pursuant to Section 13.5 with respect to such
Securities in accordance with this Article XIII; provided, however, that if the
Company makes any payment of principal of (and premium, if any) or interest on
any such Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent.
66
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
---------------
67
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
RYERSON TULL, INC.
By:/s/ Robert J. Darnall
---------------------
Name: Robert J. Darnall
Title: Chairman
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
RYERSON TULL, INC.
By:
-----------------------------
Name: Robert J. Darnall
Title: Chairman
THE BANK OF NEW YORK, as Trustee
By: /s/ Helen M. Cotiaux
----------------------------
Name: Helen M. Cotiaux
---------------------------
Title: Vice President
--------------------------
<PAGE>
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 27th day of June, 1996, before me personally came Robert J. Darnall,
to me known, who, being by me duly sworn, did depose and say that he is the
Chairman of Ryerson Tull, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
"OFFICIAL SEAL"
Jeanne M. Rajala /s/ Jeanne M. Rajala
Notary Public, State of Illinois --------------------------------
My Commission Expires 06/26/99
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the______day of_____, 1996, before me personally came _________________,
to me known, who, being by me duly sworn, did depose and say that he is ________
__________of The Bank of New York one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
--------------------------------
<PAGE>
STATE OF __________
) ss.:
COUNTY OF _________
On the 27th day of June, 1996, before me personally came Robert J. Darnall,
to me known, who, being by me duly sworn, did depose and say that he is the
Chairman of Ryerson Tull, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
---------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of June, 1996, before me personally came Helen M. Cotiaux,
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of The Bank of New York one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Timothy J. Shea
---------------------------------
TIMOTHY J. SHEA
Notary Public, State of New York
No. 01SH5027547
Qualified in New York County
Commission Expires May 8, 1998
<PAGE>
EXHIBIT 4.2
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Company (as defined below)
or its agent for registration of transfer, exchange, or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT
No.: 1 $150,000,000
CUSIP No.: 783755 AA9
RYERSON TULL, INC.
8 1/2% NOTE DUE JULY 15, 2001
RYERSON TULL, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company," which term
shall include any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
upon presentation, the principal sum of ONE HUNDRED FIFTY MILLION DOLLARS on
July 15, 2001 and to pay interest on the outstanding principal amount thereon
from July 3, 1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on January
15 and July 15 in each year, commencing on January 15, 1997, at the rate of 8
1/2% per annum, until the entire principal hereof is paid or made available for
payment. The interest so payable and punctually paid or duly provided for on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
which shall be January 1 or July 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not more than 15 days and not less than 10 days prior
to such Special Record Date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the
<PAGE>
Indenture. Payment of the principal of, and premium, if any, on, and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, City of New York, or elsewhere as
provided in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that, unless this Security is in registered
global form, at the option of the Company payment of interest on any Interest
Payment Date may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register on the Regular
Record Date.
Each Security of this series is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of July 1, 1996
(herein called the "Indenture"), between the Company and The Bank of New York
(herein called the "Trustee," which term includes any successor trustee under
the Indenture with respect to the series of which this Security is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the first page hereof, and such series is limited in aggregate principal amount
to $150,000,000.
Securities of this series will be subject to redemption, in whole or in
part, at any time or from time to time, at the option of the Company on at least
30 days' prior notice by mail at a Redemption Price equal to the greater of (i)
100% of the principal amount of the Securities to be redeemed or (ii) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Rate (as defined
herein) plus 50 basis points, plus accrued but unpaid interest to the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the first page hereof, all as provided in the
Indenture. On and after the Redemption Date, interest will cease to accrue on
the Securities or portions of Securities called for redemption on such date.
Securities of this series may be redeemed in part but only in integral multiples
of $1,000.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to
-2-
<PAGE>
maturity of the Comparable Treasury Issue, assuming a price for such Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of this series of Securities that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means Goldman, Sachs & Co. and CS First
Boston Corporation, and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer") the Company shall
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
Any notice to the Holders of such a redemption need not set forth the
Redemption Price but need only set forth the calculation thereof as described in
the third paragraph of this Security. The Redemption Price, calculated as
aforesaid, shall be set forth in an Officers' Certificate delivered to the
Trustee no later than two Business Days prior to the Redemption Date.
-3-
<PAGE>
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion thereof
will be issued in the name of the Holder hereof upon cancellation hereof.
No sinking fund shall be established for the benefit of the Securities.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the premium, if any, and accrued
interest on, the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default, as Trustee, and offered the Trustee reasonable indemnity and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
interest hereon on or after any respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time
-4-
<PAGE>
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of, premium, if any, on, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any Place of Payment where the principal of,
premium, if any, on, and interest on this Security are payable duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
-5-
<PAGE>
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Security, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future stockholder, officer or trustee, as such, of the Company or of
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SERIES OF SECURITIES, INCLUDING THIS SECURITY, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PROVISIONS THEREOF.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
-6-
<PAGE>
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the undersigned officer.
RYERSON TULL, INC.
By:/s/ Robert J. Darnall
------------------------
Robert J. Darnall
Chairman
[SEAL] By /s/ Vicki L. Avril
------------------------
Vicki L. Avril
Treasurer
Attest
By: /s/ Charles B. Salowitz
--------------------------
Charles B. Salowitz
Secretary
Dated: July 3, 1996
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: /s/ Helen M. Cotiaux
------------------------
Authorized Signatory
-7-
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
============================================
============================================
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Security of Ryerson Tull, Inc. and hereby does irrevocably constitute
and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney
to transfer said Security on the books of the within named Company with full
power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature Guarantee:
-----------------------------
-8-
<PAGE>
EXHIBIT 4.3
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the Company (as defined below)
or its agent for registration of transfer, exchange, or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED PRINCIPAL AMOUNT
No.: 1 $100,000,000
CUSIP No.: 783755 AB7
RYERSON TULL, INC.
9 1/8% NOTE DUE JULY 15, 2006
RYERSON TULL, INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company," which term
shall include any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to CEDE & CO., or registered assigns,
upon presentation, the principal sum of ONE HUNDRED MILLION DOLLARS on July 15,
2006 and to pay interest on the outstanding principal amount thereon from July
3, 1996, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually in arrears on January 15 and July
15 in each year, commencing on January 15, 1997, at the rate of 9 1/8% per
annum, until the entire principal hereof is paid or made available for payment.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest which shall be
January 1 or July 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not more than 15 days and not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the
<PAGE>
Indenture. Payment of the principal of, and premium, if any, on, and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, City of New York, or elsewhere as
provided in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that, unless this Security is in registered
global form, at the option of the Company payment of interest on any Interest
Payment Date may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register on the Regular
Record Date.
Each Security of this series is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of July 1, 1996
(herein called the "Indenture"), between the Company and The Bank of New York
(herein called the "Trustee," which term includes any successor trustee under
the Indenture with respect to the series of which this Security is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the first page hereof, and such series is limited in aggregate principal amount
to $100,000,000.
Securities of this series will be subject to redemption, in whole or in
part, at any time or from time to time, at the option of the Company on at least
30 days' prior notice by mail at a Redemption Price equal to the greater of (i)
100% of the principal amount of the Securities to be redeemed or (ii) the sum of
the present values of the remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Rate (as defined
herein) plus 62.5 basis points, plus accrued but unpaid interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the first page hereof, all as provided in
the Indenture. On and after the Redemption Date, interest will cease to accrue
on the Securities or portions of Securities called for redemption on such date.
Securities of this series may be redeemed in part but only in integral multiples
of $1,000.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to
-2-
<PAGE>
maturity of the Comparable Treasury Issue, assuming a price for such Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of this series of Securities that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means Goldman, Sachs & Co. and CS First Boston
Corporation, and their respective successors; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government securities dealer in
New York City (a "Primary Treasury Dealer") the Company shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
Any notice to the Holders of such a redemption need not set forth the
Redemption Price but need only set forth the calculation thereof as described in
the third paragraph of this Security. The Redemption Price, calculated as
aforesaid, shall be set forth in an Officers' Certificate delivered to the
Trustee no later than two Business Days prior to the Redemption Date.
-3-
<PAGE>
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion thereof
will be issued in the name of the Holder hereof upon cancellation hereof.
No sinking fund shall be established for the benefit of the Securities.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of, and the premium, if any, and accrued
interest on, the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default, as Trustee, and offered the Trustee reasonable indemnity and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
interest hereon on or after any respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time
-4-
<PAGE>
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, on, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any Place of Payment where the principal of, premium,
if any, on, and interest on this Security are payable duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and none of the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
-5-
<PAGE>
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Security, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future stockholder, officer or trustee, as such, of the Company or of
any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SERIES OF SECURITIES, INCLUDING THIS SECURITY, SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PROVISIONS THEREOF.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
-6-
<PAGE>
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Security shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the undersigned officer.
RYERSON TULL, INC.
By:/s/ Robert J. Darnall
---------------------
Robert J. Darnall
Chairman
[SEAL] By:/s/ Vicki L. Avril
------------------
Vicki L. Avril
Treasurer
Attest
By:/s/ Charles B. Salowitz
-----------------------
Charles B. Salowitz
Secretary
Dated: July 3, 1996
------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:/s/ Helen M. Cotiaux
--------------------
Authorized Signatory
-7-
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
===========================================
===========================================
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Security of Ryerson Tull, Inc. and hereby does irrevocably constitute
and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Attorney
to transfer said Security on the books of the within named Company with full
power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature Guarantee:
-------------------------------------
-8-
<PAGE>
EXHIBIT 4.4
================================================================================
RIGHTS AGREEMENT
between
RYERSON TULL, INC.
and
HARRIS TRUST AND SAVINGS BANK
Rights Agent
Dated as of June 10, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
Section 1. Certain Definitions...................... 1
Section 2. Appointment of Rights Agent.............. 9
Section 3. Issue of Right Certificates.............. 9
Section 4. Form of Right Certificates............... 13
Section 5. Countersignature and Registration........ 14
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates.............. 16
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights.............. 17
Section 8. Cancellation and Destruction of
Right Certificates..................... 22
Section 9. Availability of Preferred Shares......... 23
Section 10. Preferred Shares Record Date............. 24
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights............. 25
Section 12. Certificate of Adjusted Purchase Price
or Number of Shares.................... 41
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power............. 41
Section 14. Fractional Rights and Fractional Shares.. 46
Section 15. Rights of Action......................... 49
Section 16 Agreement of Right Holders............... 50
Section 17. Right Certificate Holder Not Deemed a
Stockholder............................. 51
Section 18. Concerning the Rights Agent.............. 52
</TABLE>
-i-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
Section 19. Merger or Consolidation or Change of
Name of Rights Agent................... 53
Section 20. Duties of Rights Agent................... 54
Section 21. Change of Rights Agent................... 60
Section 22. Issuance of New Right Certificates....... 61
Section 23. Redemption............................... 62
Section 24. Exchange................................. 64
Section 25. Notice of Certain Events................. 67
Section 26. Notices.................................. 69
Section 27. Supplements and Amendments............... 69
Section 28. Successors............................... 70
Section 29. Benefits of this Agreement............... 70
Section 30. Severability............................. 70
Section 31. Governing Law............................ 71
Section 32. Counterparts............................. 71
Section 33. Descriptive Headings..................... 71
Section 34. Determinations and Actions by the
Board of Directors..................... 71
Signatures ......................................... 73
</TABLE>
Exhibit A - Form of Certificate of Designation, Preferences and
Rights
Exhibit B - Form of Right Certificate
-ii-
<PAGE>
RIGHTS AGREEMENT
----------------
Rights Agreement, dated as of June 10, 1996, between Ryerson Tull,
Inc., a Delaware corporation (the "Company"), and Harris Trust and Savings Bank,
a national banking association (the "Rights Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a "Right") for each
Common Share (as hereinafter defined) of the Company outstanding as of the close
of business on June 13, 1996 (the "Record Date"), each Right representing the
right to purchase one one-hundredth of a Preferred Share (as hereinafter
defined), upon the terms and subject to the conditions herein set forth, and has
further authorized and directed the issuance of one Right with respect to each
Common Share that shall become outstanding between the Record Date and the
Expiration Date (as such terms are hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
"Acquiring Person" shall mean any Person (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined)
<PAGE>
of such Person, shall be the Beneficial Owner (as such term is hereinafter
defined) of capital stock of the Company then outstanding representing 10% or
more of the voting power of the Company, but shall not include the Company, any
Subsidiary (as such term is hereinafter defined) of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any person
or entity holding capital stock of the Company for or pursuant to the terms of
any such plan. Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of (a) an acquisition of capital stock by the
Company which, by reducing the number of shares outstanding, increases the
proportionate voting power of shares beneficially owned by such Person to 10% or
more of the voting power of the Company, (b) a sale by an ISI Party of shares of
Class B common stock, par value $.01 per share, of the Company which, by
reducing the aggregate number of votes of Common Shares outstanding, increases
the proportionate voting power of shares beneficially owned by such Person to
10% or more of the voting power of the Company, or (c) the acquisition by such
Person of newly-issued capital stock directly from the Company (it being
understood that a purchase from an underwriter or other intermediary is not
directly from the Company); provided, however, that if a Person shall become the
Beneficial Owner of capital stock of the Company representing 10% or more of the
voting power of the Company by reason of share purchases by the Company, the
sale of shares by an ISI Party or the receipt of newly-issued capital stock
directly from the
-2-
<PAGE>
Company and shall, after such share purchases or direct issuance by the Company
or sale by ISI Parties, become the Beneficial Owner of any additional voting
stock of the Company, then such Person shall be deemed to be an "Acquiring
Person;" provided further, however, that any transferee from such Person who
becomes the Beneficial Owner of capital stock of the Company representing 10% or
more of the voting power of the Company then outstanding shall nevertheless be
deemed to be an "Acquiring Person." Notwithstanding the foregoing, if the Board
of Directors of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph, has become such inadvertently, and such Person
divests as promptly as practicable (and in any event within ten Business Days
after notification by the Company) a sufficient number of shares of capital
stock of the Company so that such Person would no longer be an Acquiring Person,
as defined pursuant to the foregoing provisions of this paragraph, then such
Person shall not be deemed to be an "Acquiring Person" for any purposes of this
Agreement.
Notwithstanding anything in this Agreement to the contrary, for
purposes of this Agreement, none of the ISI Parties shall be deemed to be an
Acquiring Person, and the Shares Acquisition Date shall not be deemed to have
occurred as a result of ownership of shares of capital stock by any ISI Party,
on or prior to the ISI Disposition Date.
-3-
<PAGE>
"Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Exchange Act, as in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner" of and shall be deemed
to have "beneficial ownership" of or "beneficially own" any securities:
(a) which such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly;
(b) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has (A) the right to acquire (whether
such right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding, whether written or
oral (other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities), or upon the exercise of conversion rights, exchange rights,
rights (other than these Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase or exchange; (B) the sole or shared
-4-
<PAGE>
right to vote or dispose (including any such right pursuant to any
agreement, arrangement or understanding, whether written or oral);
provided, however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, any security if the agreement, arrangement or
understanding to vote such security (1) arises solely from a revocable
proxy or consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and
(2) is not also then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or (C) "beneficial ownership" (as
determined pursuant to Rule 13d-3 (or any successor rule) of the General
Rules and Regulations under the Exchange Act); or
(c) which are beneficially owned, directly or indirectly, by any other
Person (or any Affiliate or Associate thereof) with which such Person or
any of such Person's Affiliates or Associates has any agreement,
arrangement or understanding, whether written or oral (other than customary
agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the purpose of
acquiring, holding, voting (except to the extent contemplated by the
proviso to clause (B) of subparagraph (b) of this definition) or disposing
of any securities of the Company.
-5-
<PAGE>
Notwithstanding anything in this definition of Beneficial Ownership
to the contrary, the phrase "then outstanding," when used with reference to a
Person's Beneficial Ownership of securities of the Company, shall mean the
number of such securities then issued and outstanding together with the number
of such securities not then actually issued and outstanding which such Person
would be deemed to own beneficially hereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday, or
a day on which banking institutions in Illinois are authorized or obligated by
law or executive order to close.
"Class A Common Shares" when used with reference to the Company shall mean
the shares of Class A common stock, par value $.01 per share, of the Company, as
such shares may be constituted or designated, or as such par value may be
changed, from time to time during the term of this Agreement.
"Close of business" on any given date shall mean 5:00 P.M., Chicago
time, on such date; provided, however, that if such date is not a Business Day
it shall mean 5:00 P.M., Chicago time, on the next succeeding Business Day.
"Common Shares" when used with reference to the Company shall mean the
shares of both Class A and Class B common stock, par value $.01 per share as
such shares may be constituted or designated, or as such par value may be
changed, from time to time during the term of this Agreement, of the Company.
"Common
-6-
<PAGE>
Shares" when used with reference to any Person other than the Company shall mean
the capital stock (or equity interest) with the greatest voting power of such
other Person or the equity securities or other equity interest having power to
control or direct the management of such other Person.
"Distribution Date" shall have the meaning set forth in Section 3
hereof.
"Effective Date" shall mean the close of business on the first
date the ISI Parties, in the aggregate, collectively beneficially own capital
stock of the Company then outstanding representing less than 50% of the voting
power of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Expiration Date" shall have the meaning set forth in Section 7
hereof.
"ISI Disposition Date" shall mean the close of business on the first
date the ISI Parties, in the aggregate, collectively beneficially own capital
stock of the Company then outstanding representing less than 10% of the voting
power of the Company.
"ISI Parties" shall collectively mean all of Inland Steel Industries,
Inc., a Delaware corporation, and its Affiliates and Associates.
"Person" shall mean any individual, firm, corporation or other entity,
and shall include any successor (by merger or otherwise) of such entity.
-7-
<PAGE>
"Preferred Shares" shall mean shares of Series A Junior Participating
Preferred Stock, par value $.01 per share, of the Company having the rights and
preferences set forth in the Form of Certificate of Designations, Preferences
and Rights attached to this Agreement as Exhibit A.
"Principal Party" shall have the meaning set forth in Section 13
hereof.
"Purchase Price" shall have the meaning set forth in Section 4 hereof.
"Redemption Date" shall have the meaning set forth in Section 7
hereof.
"Right Certificate" shall have the meaning set forth in Section 3
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) promulgated under the
Exchange Act) by the Company or an Acquiring Person that an Acquiring Person has
become such.
"Subsidiary" shall mean, with reference to any Person, any corporation
or other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"Trading Days" shall have the meaning set forth in Section 11 hereof.
-8-
<PAGE>
"Triggering Event" shall mean any event described in Section 11(a)(ii)
or Section 13(a) hereof.
Any determination or interpretation required in connection with any of the
definitions contained in this Section 1 shall be made by the Board of Directors
of the Company in their good faith judgment, which determination shall be final
and binding on the Rights Agent.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 hereof, shall prior to the Distribution Date also
be the holders of the Common Shares) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Right Certificates.
(a) Until the later of (i) the Effective Date and (ii) the earlier of (A)
the close of business on the tenth day after the Shares Acquisition Date or (B)
the close of business on the fifteenth Business Day (or such later date as may
be determined by action of the Board of Directors prior to such time as any
Person becomes an Acquiring Person) after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any entity
holding capital stock of the Company for or pursuant to the terms of any such
plan) of, or of the first public
-9-
<PAGE>
announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding capital stock of the Company for
or pursuant to the terms of any such plan) to commence, a tender or exchange
offer the consummation of which would result in any Person becoming the
Beneficial Owner of capital stock of the Company then outstanding representing
10% or more of the voting power of the Company (including any such date which is
after the date of this Agreement and prior to the issuance of the Rights; such
date being herein referred to as the "Distribution Date"), (x) the Rights will
be evidenced (subject to the provisions of Section 3(b) hereof) by the
certificates for Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be certificates for Rights) and not
by separate certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying Common Shares (including a
transfer to the Company). As soon as practicable after the Distribution Date,
the Company will prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent will, if requested,
send) by first-class, insured, postage-prepaid mail, to each record holder of
Common Shares as of the close of business on the Distribution Date, at the
address of such holder shown on the records of the Company, a Right Certificate,
in substantially the form of Exhibit B hereto (a "Right Certificate"),
evidencing one
-10-
<PAGE>
Right for each Common Share so held. As of the Distribution Date, the Rights
will be evidenced solely by such Right Certificates.
(b) With respect to certificates for Common Shares outstanding as of the
Record Date, until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof and registered
holders of Common Shares shall also be the registered holders of the associated
Rights. Until the Distribution Date (or the Expiration Date), the transfer of
any certificate for Common Shares outstanding on the Record Date, shall also
constitute the transfer of the Rights associated with the Common Shares
represented thereby.
(c) Rights shall be issued in respect of all Common Shares which are issued
(whether originally issued or delivered from the Company's treasury) after the
Record Date but prior to the earlier of the Distribution Date or the Expiration
Date. Certificates representing such Common Shares shall also be deemed to be
certificates for Rights. Certificates representing both Common Shares and
Rights in accordance with this Section 3 which are executed and delivered
(whether the Common Shares represented thereby are originally issued, delivered
from the Company's treasury or are presented for transfer) by the Company
(including, without limitation, certificates representing reacquired Common
Shares referred to in the last sentence of this paragraph (c)) after the Record
Date but prior to the earlier of the Distribution Date or the Expiration Date
shall have impressed
-11-
<PAGE>
on, printed on, written on or otherwise affixed to them a legend substantially
equivalent to the following:
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in the Rights Agreement between Ryerson Tull, Inc. (the
"Company") and Harris Trust and Savings Bank, dated as of June 10, 1996
(the "Rights Agreement"), the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the principal offices of the
Company. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will
no longer be evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly after receipt of a written
request therefor. Under certain circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any Person who is, was or becomes
an Acquiring Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on behalf of
such Person or by any subsequent holder, shall become null and void.
Until the Distribution Date, the Rights associated with the Common Shares shall
be evidenced by the certificates representing the associated Common Shares
alone, and the transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
In the event that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Common Shares which
are no longer outstanding.
-12-
<PAGE>
Section 4. Form of Right Certificates.
(a) The Right Certificates (and the forms of election to purchase Preferred
Shares and of assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto and may have such marks
of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of Section 11
and Section 22 hereof, the Right Certificates shall entitle the holders thereof
to purchase such number of one one-hundredths of a Preferred Share as shall be
set forth therein at the price per one one-hundredth of a Preferred Share set
forth therein (the "Purchase Price"), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase Price thereof shall
be subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or Section 22
hereof that represents Rights beneficially owned by: (i) an Acquiring Person or
any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an
Acquiring Person (or such Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes an Acquiring Person, or (iii) a
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transferee of an Acquiring Person (or such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding, whether written or oral,
regarding the transferred Rights or (B) a transfer which is part of a plan,
arrangement or understanding, whether written or oral, which has as a primary
purpose or effect avoidance of Section 7(e) hereof, and any Right Certificate
issued pursuant to Section 6 or Section 11 hereof upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in this
sentence, shall contain (to the extent feasible and otherwise reasonably
identifiable as such) the following legend:
The Rights represented by this Right Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Right Certificate and the Rights represented
hereby shall become void in the circumstances specified in Section 7(e) of
such Agreement.
The provisions of Section 7(e) shall apply whether or not any Right Certificate
actually contains the foregoing legend.
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, any Vice
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Chairman, its President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto the Company's
seal or a facsimile thereof, and shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile signature.
The Right Certificates shall be manually countersigned by the Rights Agent and
shall not be valid for any purpose unless countersigned. In case any officer of
the Company who shall have signed any of the Right Certificates shall cease to
be such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless, may
be countersigned by the Rights Agent and issued and delivered by the Company
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any Right
Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at its office designated for such purpose, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Right Certificates, the
number
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of Rights evidenced on its face by each of the Right Certificates and the date
of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 4(b), 7(e), 14 and 24 hereof, at
any time after the close of business on the Distribution Date, and at or prior
to the close of business on the Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the registered holder to
purchase a like number of Preferred Shares (or, following a Triggering Event,
Common Shares, other securities or property, as the case may be) as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right Certificate
or Right Certificates to be transferred, split up, combined or exchanged at the
office of the Rights Agent designated for such purpose. Neither the Rights
Agent nor the Company shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Right Certificate until the
registered holder shall have completed and signed the certificate contained in
the form of assignment on the reverse side of such Right Certificate
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accompanied by such documents as the Rights Agent may deem appropriate and the
Company shall have been provided with such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Sections 4 and 7 hereof, countersign and deliver to the person
entitled thereto a Right Certificate or Right Certificates, as the case may be,
as so requested. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the
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registered holder of any Right Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein) in whole or in part at any time
after the Distribution Date upon surrender of the Right Certificate, with the
form of election to purchase on the reverse side thereof duly executed, to the
Rights Agent at the office of the Rights Agent designated for such purpose,
together with payment of the Purchase Price with respect to each surrendered
Right for the total number of Preferred Shares (or other securities or property,
as the case may be) as to which the Rights are exercised, at or prior to the
earliest of (i) the close of business on June 13, 2006 (the "Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in Section 23 hereof
(the "Redemption Date"), or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price for each one one-hundredth of a Preferred Share
pursuant to the exercise of a Right shall initially be $95.00, shall be subject
to adjustment from time to time as provided in Sections 11 and 13 hereof and
shall be payable in lawful money of the United States of America in accordance
with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase and the certificate on the reverse side of
the Right Certificate duly executed, accompanied by such documents as the Rights
Agent may deem appropriate, payment of the Purchase Price for the shares
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(or other securities or property, as the case may be) to be purchased and an
amount equal to any applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 9 hereof by certified check,
cashier's check or money order payable to the order of the Company, the Rights
Agent shall thereupon promptly (i) (A) requisition from any transfer agent of
the Preferred Shares (or make available, if the Rights Agent is the transfer
agent of the Preferred Shares) certificates for the number of Preferred Shares
to be purchased and the Company hereby irrevocably authorizes its transfer agent
to comply with all such requests, or (B) if the Company shall have elected to
deposit the Preferred Shares issuable upon exercise of the Rights with a
depositary agent, requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a Preferred Share as are to be
purchased (in which case certificates for the Preferred Shares represented by
such receipts shall be deposited by the transfer agent with the depositary
agent) and the Company will direct the depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company the amount of cash
to be paid in lieu of issuance of fractional shares in accordance with Section
14 hereof, (iii) after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the registered holder of
such Right Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate, after receipt, deliver such cash to or
upon the
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order of the registered holder of such Right Certificate. In the event that the
Company is obligated to issue other securities (including Common Shares) of the
Company, pay cash and/or distribute other property pursuant to Section 11(a)
hereof, the Company will make all arrangements necessary so that such other
securities, cash and/or property are available for distribution by the Rights
Agent, if and when appropriate.
(d) In case the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the occurrence of a Triggering Event, any Rights beneficially owned by (i)
an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes an Acquiring Person, or
(iii) a transferee of an Acquiring Person (or such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming
an Acquiring Person and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or
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to any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding, whether written or oral, regarding the transferred
Rights or (B) a transfer which the Board of Directors otherwise concludes in
good faith is part of a plan, arrangement or understanding (whether written or
oral) which has as a primary purpose or effect the avoidance of this Section
7(e), shall become null and void without any further action, and any holder of
such Rights shall thereupon have no rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise, from and
after the occurrence of a Triggering Event. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7(e) hereof are complied
with, but shall have no liability to any holder of Rights for the inability to
make any determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the
Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless the certificate contained in the form of
election to purchase set forth on the reverse side of the Right Certificate
surrendered for such exercise shall have been completed and signed by the
registered holder thereof and the Company shall have been provided with such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner)
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or Affiliates or Associates thereof as the Company shall reasonably request.
(g) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued Preferred Shares (and,
following the occurrence of a Triggering Event, Common Shares and/or other
securities) or any Preferred Shares (and, following the occurrence of a
Triggering Event, Common Shares and/or other securities) held in its treasury,
the number of Preferred Shares (and, following the occurrence of a Triggering
Event, Common Shares and/or other securities) that will be sufficient to permit
the exercise in full of all outstanding Rights.
(h) Notwithstanding any statement to the contrary contained in this
Agreement or in any Right Certificate, if the Distribution Date or the Shares
Acquisition Date shall occur prior to the Record Date, the provisions of this
Agreement, including (without limitation) Sections 3 and 11(a)(ii), shall be
applicable to the Rights upon their issuance to the same extent such provisions
would have been applicable if the Record Date were the date of this Agreement.
Section 8. Cancellation and Destruction of Right Certificates. All Right
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled
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by it, and no Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other Right Certificate
purchased or acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates to the Company,
or shall, at the written request of the Company, cause such cancelled Right
Certificates to be destroyed, and in such case cause a certificate of
destruction to be delivered to the Company.
Section 9. Availability of Preferred Shares. The Company covenants and
agrees that it will take all such action as may be necessary to ensure that all
Preferred Shares (and, following the occurrence of a Triggering Event, Common
Shares and/or other securities) delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such Preferred Shares (and, following
the occurrence of a Triggering Event, Common Shares and/or other securities),
subject to payment of the Purchase Price, be duly and validly authorized and
issued and fully paid and nonassessable shares.
The Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the Right Certificates or of
any Preferred Shares (or Common Shares and/or other securities, as the case may
be) upon
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the exercise of Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery of
Right Certificates to a person other than, or the issuance or delivery of
certificates or depositary receipts for the Preferred Shares (or Common Shares
and/or other securities, as the case may be) in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or to deliver any certificates or depositary receipts for
Preferred Shares (or Common Shares and/or other securities, as the case may be)
upon the exercise of any Rights until any such tax shall have been paid (any
such tax being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's reasonable
satisfaction that no such tax is due.
Section 10. Preferred Shares Record Date. Each person in whose name any
certificate for Preferred Shares (or Common Shares and/or other securities, as
the case may be) is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares or securities
represented thereby on, and such certificate shall be dated, the date upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which the
Preferred Shares (or Common Shares and/or other securities, as
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the case may be) transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares or securities on, and
such certificate shall be dated, the next succeeding Business Day on which the
Preferred Shares (or Common Shares and/or other securities, as the case may be)
transfer books of the Company are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Right Certificate shall not be entitled to
any rights of a holder of Preferred Shares (or Common Shares and/or other
securities, as the case may be) for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number of
Rights. The Purchase Price, the number of Preferred Shares covered by each Right
and the number of Rights outstanding are subject to adjustment from time to time
as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on the Preferred Shares payable in
Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C)
combine the outstanding Preferred Shares into a smaller number of Preferred
Shares or (D) issue any shares of its capital stock in a reclassification
of the Preferred Shares
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(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a) and Section 7(e) hereof,
the Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock
issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if such Right
had been exercised immediately prior to such date and at a time when the
Preferred Shares transfer books of the Company were open, he would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the exercise of
one Right be less than the aggregate par value of the shares of capital
stock of the Company issuable upon exercise of one Right. If an event
occurs which would require an adjustment under both Section 11(a)(i) and
Section 11(a)(ii), the adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii).
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(ii) Subject to Section 24 of this Agreement, in the event any Person
becomes an Acquiring Person, each holder of a Right, except as provided
below and in Section 7(e) hereof, shall thereafter have a right to receive,
upon exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for
which a Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preferred Shares, such number of Class A Common
Shares of the Company as shall equal the result obtained by (x) multiplying
the then current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable and dividing that
product by (y) 50% of the then current per share market price of the
Company's Class A Common Shares (determined pursuant to Section 11(d)
hereof) on the date of the occurrence of such event. In the event that any
Person shall become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action which would eliminate or
diminish the benefits intended to be afforded by the Rights.
(iii) In lieu of issuing Class A Common Shares of the Company in
accordance with Section 11(a)(ii) hereof, the Company may, in the sole
discretion of the Board of Directors, elect to (and, in the event that the
Board of Directors has not exercised the exchange right contained in
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Section 24 hereof and there are not sufficient issued but not outstanding
and authorized but unissued Class A Common Shares to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii), the
Company shall) take all such action as may be necessary to authorize, issue
or pay, upon the exercise of the Rights, cash (including by way of a
reduction of the Purchase Price), property, other securities or any
combination thereof having an aggregate value equal to the value of the
Class A Common Shares of the Company which otherwise would have been
issuable pursuant to Section 11(a)(ii), which aggregate value shall be
determined by a majority of the Board of Directors. For purposes of the
preceding sentence, the value of the Class A Common Shares shall be
determined pursuant to Section 11(d) hereof and the value of any equity
securities which a majority of the Board of Directors determines to be a
"common stock equivalent" (including the Preferred Shares, in such ratio as
the Board of Directors shall determine) shall be deemed to have the same
value as the Class A Common Shares. Any such election by the Board of
Directors must be made and publicly announced within 60 days following the
date on which the event described in Section 11(a)(ii) shall have occurred.
Following the occurrence of the event described in Section 11(a)(ii), a
majority of the Board of Directors then in office may suspend the
exercisability of the Rights for a period of up
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to 60 days following the date on which the event described in Section
11(a)(ii) shall have occurred to the extent that such directors have not
determined whether to exercise the Company's right of election under this
Section 11(a)(iii). In the event of any such suspension, the Company shall
issue a public announcement stating that the exercisability of the Rights
has been temporarily suspended.
(b) In case the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Shares entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for
or purchase Preferred Shares (or shares having the same rights, privileges and
preferences as the Preferred Shares ("equivalent preferred shares")) or
securities convertible into Preferred Shares or equivalent preferred shares at a
price per Preferred Share or equivalent preferred share (or having a conversion
price per share, if a security convertible into Preferred Shares or equivalent
preferred shares) less than the then current per share market price of the
Preferred Shares (as defined in Section 11(d)) on such record date, the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of Preferred Shares which the
aggregate offering price of the total number of Preferred Shares and/or
equivalent preferred
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shares so to be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such current market
price and the denominator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of additional Preferred Shares
and/or equivalent preferred shares to be offered for subscription or purchase
(or into which the convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of one Right. In
case such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding on the Rights Agent. Preferred Shares owned by or held for the
account of the Company shall not be deemed outstanding for the purpose of any
such computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights, options or warrants are
not so issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Shares
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(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or subscription rights or
warrants (excluding those referred to in Section 11(b) hereof), the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share market
price of the Preferred Shares on such record date, less the fair market value
(as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent) of
the portion of the assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one Preferred Share and
the denominator of which shall be such current per share market price of the
Preferred Shares; provided, however, that in no event shall the consideration to
be paid upon the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company to be issued upon exercise of one
Right. Such adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
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(d) (i) For the purpose of any computation hereunder, other than
under Section 11(a)(iii) hereof, the "current per share market price" of
any security (a "Security" for the purpose of this Section 11(d)(i)) on any
date shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date, and for the purpose of
any computation under Section 11(a)(iii) hereof, the "current per share
market price" of a Security on any date shall be deemed to be the average
of the daily closing prices per share of such Security for thirty (30)
consecutive Trading Days immediately following such date; provided,
however, that in the event that the current per share market price of the
Security is determined during a period following the announcement by the
issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into such
shares (other than the Rights), or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, then,
and in each such case, the "current per share market price" shall be
appropriately adjusted to reflect the current market price per share
equivalent (ex-dividend) of such Security.
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The closing price for each day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or,
if the Security is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the Security is listed or admitted to trading
or, if the Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other system then in use, or,
if on any such date the Security is not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security selected by the
Board of Directors of the Company. If on any such date no market maker is
making a market in the Security, the fair value of such Security on such
date (as determined in good faith by the Board of Directors of the Company)
shall be used. The term "Trading
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Day" shall mean a day on which the principal national securities exchange
on which the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the "current per
share market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i). If the Preferred
Shares are not publicly traded, the "current per share market price" of the
Preferred Shares shall be conclusively deemed to be the current per share
market price of the Class A Common Shares of the Company as determined
pursuant to Section 11(d)(i) (appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date
hereof), multiplied by one hundred. If neither the Class A Common Shares of
the Company nor the Preferred Shares are publicly held or so listed or
traded, "current per share market price" shall mean the fair value per
share as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent.
(e) Anything herein to the contrary notwithstanding, no adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments
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which by reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest cent or to the
nearest one one-millionth of a Preferred Share or one ten-thousandth of any
other share or security, as the case may be. Notwithstanding the first sentence
of this Section 11(e), any adjustment required by this Section 11 shall be made
no later than the earlier of (i) three years from the date of the transaction
which requires such adjustment or (ii) the date of the expiration of the right
to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a) or
Section 13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than
Preferred Shares, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Shares contained in this Section 11, and the provisions
of Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares shall apply
on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
Preferred Share purchasable
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from time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one one-hundredths of a
Preferred Share (calculated to the nearest one one-millionth of a Preferred
Share) obtained by (i) multiplying (x) the number of one one-hundredths of a
share covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-hundredths of a Preferred Share purchasable
upon the exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by dividing the Purchase
Price in effect
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immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Company shall
make a public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later than the date of
the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Right Certificates on such record date Right Certificates evidencing, subject
to Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right Certificates on the
record date specified in the public announcement.
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(j) Irrespective of any adjustment or change in the Purchase Price or the
number of one one-hundredths of a Preferred Share issuable upon the exercise of
the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of one one-hundredths of a
Preferred Share which were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below one one-hundredth of the then par value, if any, of the
Preferred Shares issuable upon exercise of the Rights, the Company shall take
any corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid and
nonassessable Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event the
issuing to the holder of any Right exercised after such record date of the
Preferred Shares and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Preferred Shares and other
capital stock or securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive
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such additional shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Preferred Shares, issuance
wholly for cash of any Preferred Shares at less than the current market price,
issuance wholly for cash of Preferred Shares or securities which by their terms
are convertible into or exchangeable for Preferred Shares, dividends on
Preferred Shares payable in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in Section 11(b), hereafter made by the Company
to holders of its Preferred Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement and
prior to the Distribution Date, the Company shall (i) declare or pay any
dividend on the Common Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares)
into a greater or lesser number of Common Shares, then in any such case (i) the
number of one one-hundredths of a Preferred Share purchasable after such event
upon proper exercise of each Right shall be determined by multiplying the number
of one one-
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hundredths of a Preferred Share so purchasable immediately prior to such event
by a fraction, the numerator of which is the number of Common Shares outstanding
immediately before such event and the denominator of which is the number of
Common Shares outstanding immediately after such event, and (ii) each Common
Share outstanding immediately after such event shall have issued with respect to
it that number of Rights which each Common Share outstanding immediately prior
to such event had issued with respect to it. The adjustments provided for in
this Section 11(n) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or consolidation is
effected.
(o) So long as the shares issuable upon the exercise of the Rights may be
listed on any national securities exchange, the Company shall use its best
efforts to cause, from and after such time as the Rights become exercisable, all
shares reserved for such issuance to be listed on such exchange upon official
notice of issuance upon such exercise.
(p) The Company shall use its best efforts to (i) file, as soon as
practicable following the first occurrence of a Triggering Event, a registration
statement under the Securities Act with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with a prospectus
at all times meeting the
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requirements of the Securities Act) until the date of the expiration of the
Rights. The Company will also take such action as may be appropriate under the
blue sky laws of the various states. The Company may temporarily suspend, for a
period of time not to exceed 90 days, the exercisability of the Rights in order
to prepare and file such registration statement or in order to comply with such
blue sky laws. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 or 13 hereof, the
Company shall promptly (a) prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Common Shares or the
Preferred Shares a copy of such certificate and (c) mail a brief summary thereof
to each holder of a Right Certificate in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained and may assume that no adjustment has been made
unless and until it shall have received such certificate. No failure to comply,
or defect in compliance with, this Section 12 shall affect the validity of any
adjustment.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
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(a) If after the Shares Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into, the Acquiring Person (or
any Affiliate or Associate of the Acquiring Person), (y) the Acquiring Person
(or any Affiliate or Associate of the Acquiring Person) shall consolidate with
the Company, or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection with such
merger, all or part of the Common Shares shall be changed into or exchanged for
stock or other securities of any other Person (or the Company) or cash or any
other property, or (z) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to the
Acquiring Person (and its Affiliates and Associates), then, and in each such
case, proper provision shall be made so that (i) each holder of a Right (except
as otherwise provided herein) shall thereafter have the right to receive, upon
the exercise thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-hundredths of a Preferred Share for which a
Right is then exercisable, in accordance with the terms of this Agreement and in
lieu of Preferred Shares, such number of validly authorized and issued, fully
paid, non-assessable and freely tradeable Common Shares of the Principal Party
(as hereinafter defined), free and clear of all liens, rights of call or first
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refusal, encumbrances or other adverse claims, as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable (or,
if such Right is not then exercisable for a number of one one-hundredths of a
Preferred Share, the number of such fractional shares for which it was
exercisable immediately prior to an event described under Section 11(a)(ii)
hereof) and dividing that product by (B) 50% of the then current per share
market price of the Common Shares of such Principal Party (determined pursuant
to Section 11(d) hereof) on the date of consummation of such consolidation,
merger, sale or transfer; (ii) such Principal Party shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger, sale or
transfer, or otherwise, all the obligations and duties of the Company pursuant
to this Agreement; (iii) the term "Company" shall thereafter be deemed to refer
to such Principal Party and (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of its
Common Shares in accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to its
Common Shares thereafter deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean:
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(i) In the case of any transaction described in (x) or (y) of the
first sentence of Section 13(a), the Person that is the issuer of any
securities into which Common Shares of the Company are converted in such
merger or consolidation, and if no securities are so issued, the Person
that is the surviving entity of such merger or consolidation (including the
Company if applicable); and
(ii) in the case of any transaction described in (z) of the first
sentence in Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions;
provided, however, that in any such case described in clauses (b)(i) and
(b)(ii): (1) if the Common Shares of such Person are not at such time and have
not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Shares of which is and has been so
registered, "Principal Party" shall refer to such other Person; (2) in case such
Person is a Subsidiary, directly or indirectly, or more than one Person, the
Common Shares of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the issuer of the
Common Shares having the greatest aggregate market value; and (3) in case such
Person is owned, directly or indirectly, by a joint venture formed by two or
more Persons that are not owned,
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directly or indirectly, by the same Person, the rules set forth in (1) and (2)
above shall apply to each of the chains of ownership having an interest in such
joint venture as if such party were a "Subsidiary" of both or all of such joint
venturers and the Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio as their direct or
indirect interests in such Person bear to the total of such interests.
(c) The Company shall not consummate any such consolidation, merger, sale
or transfer unless the Principal Party shall have sufficient Common Shares
authorized to permit the full exercise of the Rights and prior thereto the
Company and such Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth in paragraphs
(a) and (b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of assets
mentioned in paragraph (a) of this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the Securities
Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Securities Act)
until the Expiration Date;
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(ii) deliver to holders of the Rights historical financial statements
for the Principal Party and each of its Affiliates which comply in all
respects with the requirements for registration on Form 10 under the
Exchange Act; and
(iii) take such actions as may be necessary or appropriate under the
blue sky laws of the various states.
The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that one of the
transactions described in this Section 13(a) shall occur at any time after the
occurrence of a transaction described in Section 11(a)(ii) hereof, the Rights
which have not theretofore been exercised shall thereafter become exercisable
in the manner described in Section 13(a).
Section 14. Fractional Rights and Fractional Shares. (a) The Company
shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there may be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the last sale
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price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-hundredth
of a Preferred Share) upon exercise of the Rights or to distribute certificates
which
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evidence fractional Preferred Shares (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share). Fractions of Preferred
Shares in integral multiples of one one-hundredth of a Preferred Share may, at
the election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it;
provided, that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are not
integral multiples of one one-hundredth of a Preferred Share, the Company may
pay to the registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value of one one-hundredth of a Preferred Share. For the purposes
of this Section 14(b), the current market value of one one-hundredth of a
Preferred Share shall be one one-hundredth of the closing price of a Preferred
Share (as determined pursuant to the second sentence of Section 11(d)(i) hereof)
for the Trading Day immediately prior to the date of such exercise.
(c) Following the occurrence of a Triggering Event, the Company shall not
be required to issue fractions of Class A Common Shares upon exercise of the
Rights or to distribute certificates which evidence fractional Class A Common
Shares. In
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lieu of fractional Class A Common Shares, the Company may pay to the registered
holders of Right Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one Class A Common Share. For purposes of this Section 14(c), the
current market value of one Class A Common Share shall be the closing price of
one Class A Common Share (as determined pursuant to the second sentence of
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
such exercise.
(d) The holder of a Right by the acceptance of the Right expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
Section 15. Rights of Action. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such
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Right Certificate in the manner provided in such Right Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of the obligations of
any Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only
in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the office of
the Rights Agent designated for such purposes, duly endorsed or accompanied by a
proper instrument of transfer and with appropriate forms and certificates fully
executed;
(c) the Company and the Rights Agent may deem and treat the person in whose
name the Right Certificate (or, prior to the Distribution Date, the associated
Common Shares certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of ownership or
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writing on the Right Certificates or the associated Common Shares certificate
made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by
any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the
Company nor the Rights Agent shall have any liability to any holder of a Right
or any other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder,
as such, of any Right Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the Preferred Shares or any other
securities of the Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained herein or in any
Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
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stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Right Certificate shall have been exercised in accordance with the
provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements (including any taxes other than income
taxes) incurred in the administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability arising, directly or indirectly, therefrom. The indemnity provided for
herein shall survive the expiration of the Rights and the termination of this
Agreement. The costs and expenses incurred in successfully enforcing this right
of indemnification shall be paid by the Company.
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The Rights Agent shall be protected and shall incur no liability for, or in
respect of any action taken, suffered or omitted by it in connection with, its
administration of this Agreement in reliance upon any Right Certificate or
certificate for the Preferred Shares or Common Shares or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
person or persons, or otherwise upon the advice of counsel as set forth in
Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
Any corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the stock transfer or
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any
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of the Right Certificates shall have been countersigned but not delivered; any
such successor Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed and at
such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound and no implied duties or
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obligations shall be read into this Agreement against the Rights Agent:
(a) Before the Rights Agent acts or refrains from acting, it may consult
with legal counsel satisfactory to it (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent and the Rights Agent shall
incur no liability or responsibility to the Company or to any holder of any
Right Certificate in respect of any action taken or omitted by it in good faith
and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering or omitting
action hereunder, such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board, the
Chief Executive Officer, any Vice Chairman, the President, any Vice President,
the Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company only for its
own negligence, bad faith or willful misconduct.
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(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 7(e) hereof) or any adjustment in the
terms of the Rights (including the manner, method or amount thereof) provided
for in Section 3, 11, 13, 23 or 24, or the ascertaining of the existence of
facts that would require any such change or adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after receipt of a
certificate furnished pursuant to Section 12 describing a change or adjustment);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Preferred Shares or Class
A Common Shares to be issued pursuant to this Agreement or any Right Certificate
or
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as to whether any Preferred Shares or Class A Common Shares will, when issued,
be validly authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
one of the Chairman of the Board, the Chief Executive Officer, any Vice
Chairman, the President, any Vice President, the Secretary or the Treasurer of
the Company, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken or
suffered by it in good faith in accordance with instructions of any such officer
or for any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Company may,
at the option of the Rights Agent, set forth in writing any action proposed to
be taken or omitted by the Rights Agent under this Rights Agreement and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable for any action taken by, or
omission of, the Rights Agent in accordance with a proposal included in any such
application on
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or after the date specified in such application (which date shall not be less
than five Business Days after the date such application is given, unless any
such officer shall have consented in writing to an earlier date) unless, prior
to taking any such action (or the effective date in the case of an omission),
the Rights Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or its Subsidiaries or become pecuniarily interested in any
transaction in which the Company or its Subsidiaries may be interested, or
contract with or lend money to the Company or its Subsidiaries or otherwise act
as fully and freely as though it were not Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting in any other capacity
for the Company or its Subsidiaries or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
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(j) If, with respect to any Rights Certificate surrendered to the Rights
Agent for exercise, transfer, split-up, combination or exchange, the certificate
attached to the form of assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take any further action
with respect to such requested exercise, transfer, split-up, combination or
exchange without first consulting with the Company.
(k) The Rights Agent shall not be under any duty or responsibility to
insure compliance with any applicable federal or state securities laws in
connection with the issuance, transfer or exchange of Right Certificates.
(l) The Rights Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more holders of Right Certificates shall furnish
the Rights Agent with security and indemnity to its satisfaction for any costs
and expenses which may be incurred.
(m) The Rights Agent shall not be liable for failure to perform any duties
except as specifically set forth herein and no implied covenants or obligations
shall be read into this Agreement against the Rights Agent whose duties and
obligations are ministerial and shall be determined solely by the express
provisions hereof.
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Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
of the Common Shares or Preferred Shares by registered or certified mail, and to
the holders of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon 30 days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Shares or Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be a
corporation or bank organized and doing business under the laws of the United
States or of any other state of the United States, which is authorized
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under such laws to exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $100 million. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares or Preferred Shares, and mail a notice thereof in writing to
the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Right Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the Purchase Price and the number or kind or class of
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shares or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Agreement.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at any time
prior to such time as any Person becomes an Acquiring Person, redeem all but not
less than all the then outstanding Rights at a redemption price of $.01 per
Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The redemption of the Rights
by the Board of Directors may be made effective at such time on such basis and
with such conditions as the Board of Directors in its sole discretion may
establish. If redemption of the Rights is to be effective as of a future date,
the Rights shall continue to be exercisable, subject to Section 7 hereof, until
the effective date of the redemption, provided that nothing contained herein
shall preclude the Board of Directors from subsequently causing the Rights to be
redeemed at a date earlier than the previously scheduled effective date of the
redemption. The Company may, at its option, pay the Redemption Price in cash,
Class A Common Shares (based on the current per share market price of the Class
A Common Shares at the time of redemption) or any other form of consideration
deemed appropriate by the Board of Directors.
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(b) Immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights (or at the effective time of such
redemption established by the Board of Directors of the Company pursuant to
paragraph (a) of this Section 23), and without any further action and without
any notice, the right to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the Redemption Price.
The Company shall promptly give public notice of any such redemption; provided,
however, that the failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Promptly after such action of the Board
of Directors ordering the redemption of the Rights or, if later, the
effectiveness of the redemption of the Rights pursuant to the last sentence of
paragraph (a), the Company shall mail a notice of redemption to all the holders
of the then outstanding Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made; provided,
however, that such notice of redemption may be sent simultaneously with payment
of the redemption price. The Company may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release
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<PAGE>
announcing the manner of redemption of the Rights, (ii) depositing with a bank
or trust company having a capital and surplus of at least $100,000,000, funds
necessary for such redemption, in trust, to be applied to the redemption of the
Rights so called for redemption and (iii) arranging for the mailing of the
Redemption Price to the registered holders of the Rights; then, and upon such
action, all outstanding Rights Certificates shall be null and void without
further action by the Company. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23, in Section
24 hereof, or in connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the Company may, at
its option, at any time after a Triggering Event, exchange all or part of the
then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 7(e) hereof) for Class A
Common Shares at an exchange ratio of one Class A Common Share per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such exchange
at any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any such
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Subsidiary, or any entity holding capital stock for or pursuant to the terms of
any such plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of capital stock of the Company representing 50% or
more of the voting power of the Company.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to paragraph (a) of this Section 24
and without any further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of Class A Common Shares equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Shares for Rights will be effected
and, in the event of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on the number
of Rights (other than
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Rights which have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Shares (or equivalent preferred shares, as such
term is defined in Section 11(b) hereof) for Class A Common Shares exchangeable
for Rights, at the initial rate of one one-hundredth of a Preferred Share (or
equivalent preferred share) for each Class A Common Share, as appropriately
adjusted to reflect adjustments in the voting rights of the Preferred Shares
pursuant to the terms thereof, so that the fraction of a Preferred Share
delivered in lieu of each Class A Common Share shall have the same voting rights
as one Class A Common Share.
(d) In the event that there shall not be sufficient Class A Common Shares
or Preferred Shares issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with this Section
24, the Company shall take all such action as may be necessary to authorize
additional Class A Common Shares or Preferred Shares for issuance upon exchange
of the Rights.
(e) The Company shall not be required to issue fractions of Class A Common
Shares or to distribute certificates which evidence fractional Class A Common
Shares. In lieu of such fractional Class A Common Shares, the Company shall pay
to the registered holders of the Right Certificates with regard to which such
fractional Class A Common Shares would otherwise be issuable
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an amount in cash equal to the same fraction of the current market value of a
whole Class A Common Share. For the purposes of this paragraph (e), the current
market value of a whole Class A Common Share shall be the closing price of a
Class A Common Share (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose at any time after the Distribution
Date (i) to pay any dividend payable in stock of any class to the holders of its
Preferred Shares or to make any other distribution to the holders of its
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any reclassification of its
Preferred Shares (other than a reclassification involving only the subdivision
of outstanding Preferred Shares), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or more
transactions, of 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to declare or pay
any dividend on the Common Shares payable in
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Common Shares or to effect a subdivision, combination or consolidation of the
Common Shares (by reclassification or otherwise than by payment of dividends in
Common Shares), then, in each such case, the Company shall give to each holder
of a Right Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, or distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common Shares and/or Preferred Shares, if any such
date is to be fixed, and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least 10 days prior to the record date
for determining holders of the Preferred Shares for purposes of such action, and
in the case of any such other action, at least 10 days prior to the date of the
taking of such proposed action or the date of participation therein by the
holders of the Common Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case any of the events set forth in Section 11(a)(ii) hereof shall
occur, then the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii) hereof.
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Section 26. Notices. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Ryerson Tull, Inc.
2621 West 15th Place
Chicago, Illinois 60608
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, Illinois 60606
Attention: Charles Zade
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company. Notices or demands sent by mail shall be deemed given or
made three Business Days after the date they are sent.
Section 27. Supplements and Amendments. The Company may from time to time
supplement or amend this Agreement without the
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approval of any holders of Right Certificates in order to cure any ambiguity, to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, or to make any other provisions
with respect to the Rights which the Company may deem necessary or desirable,
any such supplement or amendment to be evidenced by a writing signed by the
Company and the Rights Agent; provided, however, that from and after such time
as any Person becomes an Acquiring Person, this Agreement shall not be amended
in any manner which would adversely affect the interests of the holders of
Rights.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or
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unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
Section 34. Determinations and Actions by the Board of Directors. The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or the Company or as may be necessary or advisable in the
administration of this Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or
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advisable for the administration of this Agreement (including a determination to
redeem or not redeem the Rights or to amend the Agreement). All such actions,
interpretations and determinations (including, for purpose of clause (ii) below,
all omissions with respect to the foregoing) which are done or made by the Board
in good faith, shall (i) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Right Certificates and all other parties, and
(ii) not subject the Board of Directors to any liability to the holders of the
Right Certificates.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
Attest: RYERSON TULL, INC.
By:/s/ Charles B. Salowtiz By: /s/ Robert J. Darnall
------------------- ---------------------
Title: Secretary Title: Chairman
Attest: HARRIS TRUST AND SAVINGS BANK
By: /s/ Richard C. Carlson By: /s/ Charles V. Zade
---------------------- -------------------
Title: Vice President Title: Vice President
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Exhibit A
---------
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
RYERSON TULL, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, [NAME][TITLE], and Charles B. Salowitz, Secretary of Ryerson Tull,
Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Corporation"), in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Restated Certificate of Incorporation of the Corporation, the Board of Directors
on June __, 1996 adopted the following resolution creating a series of 1,340,000
shares of preferred stock designated as Series A Junior Participating Preferred
Stock:
RESOLVED, that pursuant to the authority granted to the Board of Directors
by the Restated Certificate of Incorporation, of the Corporation, the Board of
Directors hereby creates a series of preferred stock, par value $1.00 per share,
of the Corporation (the class of preferred stock being herein referred to as
"Preferred Stock," which term shall include any additional shares of preferred
stock of the same or different series heretofore or hereafter authorized to be
issued by the Corporation), consisting of 1,340,000 shares, and hereby fixes the
designation and the voting powers, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions thereof, as follows:
Section 1. Designation and Amount. There shall be a series of Preferred
Stock of the Corporation which shall be designated as "Series A Junior
Participating Preferred Stock," par value $1.00 per share (hereinafter called
"Series A Preferred Stock"), and the number of shares constituting such series
shall be 1,340,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors and by the filing of a certificate pursuant
to the provisions of the General Corporation Law of the State of Delaware
stating that such increase or reduction has been so authorized; provided,
however, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than that of the shares then outstanding
<PAGE>
plus the number of shares of Series A Preferred Stock issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash to holders of record on the last business
day of March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Class A Common Stock (hereinafter defined) or a
subdivision of the outstanding shares of Class A Common Stock (by
reclassification or otherwise), declared on the Class A Common Stock, par value
$1.00 per share, of the Corporation (the "Class A Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock. In the event the Corporation
shall at any time following June 13, 1996 (i) declare any dividend on Class A
Common Stock payable in shares of Class A Common Stock, (ii) subdivide the
outstanding Class A Common Stock or (iii) combine the outstanding Class A Common
Stock into a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be adjusted
by multiplying each such amount by a fraction the numerator of which is the
number of shares of Class A Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Class A Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) above at the time it declares a
dividend or distribution on the Class A Common Stock (other than a dividend
payable in shares of Class A Common Stock).
<PAGE>
(C) No dividend or distribution (other than a dividend payable in shares of
Class A Common Stock) shall be paid or payable to the holders of shares of Class
A Common Stock unless, prior thereto, all accrued but unpaid dividends to the
date of such dividend or distribution shall have been paid to the holders of
shares of Series A Preferred Stock.
(D) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each one
one-hundredth of a share of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time following June
13, 1996 (i) declare any dividend on Class A Common Stock payable in shares of
Class A Common Stock, (ii) subdivide the outstanding Class A Common Stock or
(iii) combine the outstanding Class A Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the numerator of
which is the number of shares of Class A Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of Class A
Common Stock that were outstanding immediately prior to such event.
<PAGE>
(B) Except as otherwise provided herein or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Class A Common Stock and
any other capital stock of the Corporation having general voting rights shall
vote together as one class on all matters submitted to a vote of stockholders of
the Corporation.
(C) (i) Whenever, at any time or times, dividends payable on any share or
shares of Series A Preferred Stock shall be in arrears in an amount equal
to at least six full quarterly dividends (whether or not declared and
whether or not consecutive), the holders of record of the outstanding
Series A Preferred Stock together with the holders of any other Preferred
Stock, on which the dividends payable on any share or shares of such
Preferred Stock shall be in arrears in an amount equal to at least six full
quarterly dividends (whether or not declared and whether or not
consecutive), shall have the exclusive right, voting separately as a single
class, to elect two directors of the Corporation at a special meeting of
stockholders of the Corporation or at the Corporation's next annual meeting
of stockholders, and at each subsequent annual meeting of stockholders, as
provided below. At elections for such directors, the holders of shares of
Series A Preferred Stock shall be entitled to cast one vote for each one
one-hundredth of a share of Series A Preferred Stock held.
(ii) Upon the vesting of such right of the holders of the Preferred
Stock, the maximum authorized number of members of the Board of Directors
shall automatically be increased by two and the two vacancies so created
shall be filled by vote of the holders of the outstanding Preferred Stock
as hereinafter set forth. A special meeting of the stockholders of the
Corporation then entitled to vote shall be called by the Chairman or the
President or the Secretary of the Corporation, if requested in writing by
the holders of record of not less than 10% of the Preferred Stock then
outstanding. At such special meeting, or, if no such special meeting shall
have been called, then at the next annual meeting of stockholders of the
Corporation, the holders of the shares of the Preferred Stock shall elect,
voting as above provided, two directors of the Corporation to fill the
aforesaid vacancies created by the automatic increase in the number of
members of the Board of Directors. At any and all such meetings for such
election, the holders of a majority of the outstanding shares of the
Preferred Stock shall be necessary to constitute a quorum for such
election, whether present in person or by proxy, and such two directors
shall be elected by the vote of at least a plurality of shares held by such
stockholders present or represented at the meeting. Any director elected
by holders of shares of the Preferred Stock pursuant to this Section
<PAGE>
may be removed at any annual or special meeting, by vote of a majority of
the stockholders voting as a class who elected such director, with or
without cause. In case any vacancy shall occur among the directors elected
by the holders of the Preferred Stock pursuant to this Section, such
vacancy may be filled by the remaining director so elected, or his
successor then in office, and the director so elected to fill such vacancy
shall serve until the next meeting of stockholders for the election of
directors. After the holders of the Preferred Stock shall have exercised
their right to elect Directors in any default period and during the
continuance of such period, the number of Directors shall not be further
increased or decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series A Preferred Stock.
(iii) The right of the holders of the Preferred Stock, voting
separately as a class, to elect two members of the Board of Directors of
the Corporation as aforesaid shall continue until, and only until, such
time as all arrears in dividends (whether or not declared) on the Preferred
Stock shall have been paid or declared and set apart for payment, at which
time such right shall terminate, except as herein or by law expressly
provided, subject to revesting in the event of each and every subsequent
default of the character above-mentioned. Upon any termination of the
right of the holders of the shares of the Preferred Stock as a class to
vote for directors as herein provided, the term of office of all directors
then in office elected by the holders of Preferred Stock pursuant to this
Section shall terminate immediately. Whenever the term of office of the
directors elected by the holders of the Preferred Stock pursuant to this
Section shall terminate and the special voting powers vested in the holders
of the Preferred Stock pursuant to this Section shall have expired, the
maximum number of members of the Board of Directors of the Corporation
shall be such number as may be provided for in the By-laws of the
Corporation, irrespective of any increase made pursuant to the provisions
of this Section.
(D) Except as set forth herein, holders of Series A Preferred Stock shall
have no special voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Class A Common Stock as set
forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and
<PAGE>
unpaid dividends and distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
provided that the Corporation may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, except in accordance with a purchase offer made
in writing or by publication (as determined by the Board of Directors) to
all holders of such shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative
rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
<PAGE>
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Upon any voluntary liquidation, dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock unless, prior thereto, the holders
of shares of Series A Preferred Stock shall have received $1.00 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount of the Series A
Liquidation Preference, no additional distributions shall be made to the holders
of shares of Series A Preferred Stock unless, prior thereto, the holders of
shares of Class A Common Stock shall have received an amount per share (the
"Common Adjustment") equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Class A Common Stock) (such number in
clause (ii), the "Adjustment Number"). Following the payment of the full amount
of the Series A Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of Series A Preferred Stock and Class A Common Stock,
respectively, holders of Series A Preferred Stock and holders of shares of Class
A Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio, on a per share basis, of the
Adjustment Number to 1 with respect to such Preferred Stock and Class A Common
Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series A Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity shares in proportion
to their respective liquidation preferences.
(C) In the event the Corporation shall at any time following June 13, 1996
(i) declare any dividend on Class A Common Stock payable in shares of Class A
Common Stock, (ii) subdivide the outstanding Class A Common Stock or (iii)
combine the outstanding Class A Common Stock into a smaller number of shares,
then in each such case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is
<PAGE>
the number of shares of Class A Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Class A Common
Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Class A Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case the shares
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Class A Common Stock is changed or
exchanged. In the event the Corporation shall at any time (i) declare any
dividend on Class A Common Stock payable in shares of Class A Common Stock, (ii)
subdivide the outstanding Class A Common Stock or (iii) combine the outstanding
Class A Common Stock into a smaller number of shares, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of shares of
Class A Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Class A Common Stock that were
outstanding immediately prior to such event.
Section 8. Redemption. The shares of a Series A Preferred Stock shall not
be redeemable by the Corporation. The preceding sentence shall not limit the
ability of the Corporation to purchase or otherwise deal in such shares of stock
to the extent permitted by law.
Section 9. Ranking. The Series A Preferred Stock shall rank junior to all
other series of the Corporation's preferred stock (whether with or without par
value) as to the payment of dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series A Preferred Stock, voting
separately as a class.
Section 11. Fractional Shares. Series A Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to
<PAGE>
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Preferred Stock.
FURTHER RESOLVED, that the Restated Certificate of Incorporation is amended
so that the designation and number of shares of the class and series acted upon
in the forgoing resolution, and the relative rights, preferences and limitations
of such class and series, are as stated in the resolution.
IN WITNESS WHEREOF, Ryerson Tull, Inc. has caused its corporate seal to be
hereunto affixed and this Certificate to be signed by [NAME][TITLE], and the
same to be attested by Charles B. Salowitz, its Corporate Secretary, this __th
day of _______, 1996.
RYERSON TULL, INC.
By:
-----------------------------------
[NAME]
[TITLE]
(SEAL)
Attest:
By:
-----------------------------------
Charles B. Salowitz
Corporate Secretary
<PAGE>
Exhibit B
---------
[Form of Right Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER JUNE 13, 2006, OR EARLIER IF THE RIGHTS EXPIRE UNDER
CERTAIN CIRCUMSTANCES OR ARE REDEEMED BY THE COMPANY. THE RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $1.00 PER RIGHT ON
THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED
IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]/*/
Right Certificate
Ryerson Tull, Inc.
This certifies that __________________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of _____________________, 1996 (the "Rights
Agreement"), between Ryerson Tull, Inc., a Delaware corporation (the "Company"),
and Harris Trust and Savings Bank (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 p.m., Chicago Time, on June 13, 2006, or
notice of redemption or exchange at the office of the Rights Agent (or its
successors as Rights Agent) designated for such purpose, one one-hundredth of a
fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $1.00 per share (the "Preferred Shares") of the Company at a
purchase price of $95.00 per one one-hundredth of a share (the "Purchase Price")
upon presentation and surrender of this Right Certificate with the appropriate
Form of Election to Purchase and
- ---------------------
/*/ The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
<PAGE>
related Certificate duly executed. The number of Rights evidenced by this Right
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above, are
the number and Purchase Price as of June 13, 1996, based on the Preferred Shares
as constituted at such date. Capitalized terms not defined in this Right
Certificate that are defined in the Rights Agreement shall have the meanings
ascribed to them in the Rights Agreement.
Upon the occurrence of a Triggering Event, if the Rights evidenced by this
Right Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
in the Rights Agreement), (ii) under certain circumstances specified in the
Rights Agreement, a transferee of any such Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances specified in the Rights
Agreement, a transferee of a person who, after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, such
Rights shall become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of any such Triggering
Event.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of Preferred Shares or other securities, which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under certain circumstances specified in such Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal corporate trust office of the Rights Agent, may be
exchanged for another Right Certificate or other Right Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate
<PAGE>
shall be exercised in part, the holder shall be entitled to receive upon
surrender hereof another Right Certificate or Right Certificates for the number
of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be redeemed by the Company at its option at a redemption
price of $1.00 per Right (subject to adjustment pursuant to the Rights
Agreement) at any time prior to the earlier of the close of business on (i) the
Shares Acquisition Date and (ii) the Expiration Date.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a Preferred Share, which may at the election
of the Company be evidenced by depository receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Preferred Shares or
of any other securities of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights Agreement or herein
be construed to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof; or to give or
withhold consent to any corporate action; or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement); or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
<PAGE>
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of _________ __, 19__
ATTEST: (SEAL) RYERSON TULL, INC.
_____________________________ By: ____________________________
Name: Name:
Title: Title:
Countersigned:
________________________
By: ___________________________
Authorized Signature
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such holder desires to transfer
the Right Certificate.)
FOR VALUE RECEIVED _____________________________________________________________
hereby sells, assigns and transfers unto________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint ______________________ Attorney,
to transfer the within Right Certificate on the books of the within-named
Company, with full power of substitution.
Date: __________________, 19___
___________________________
Signature
Signature Guaranteed:
CERTIFICATE
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person
or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement)
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: _____________, 19___
__________________________
Signature
<PAGE>
NOTICE
------
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the
Right Certificate.)
To: Ryerson Tull, Inc.
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Right Certificate to purchase the Preferred Shares issuable
upon the exercise of the Rights (or such other securities of the Company or of
any other person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number:
----------------------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance of such Rights shall
be registered in the name of and delivered to:
Please insert social security
or other identifying number:
----------------------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated: , 19
------------------ --- --------------------------------------
Signature
Signature Guaranteed:
<PAGE>
CERTIFICATE
-----------
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or became an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated: , 19
------------ --- ---------------------------------
Signature
NOTICE
------
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any change whatsoever.
<PAGE>
EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Ryerson Tull, Inc., a Delaware corporation ("the Company"), and Inland
Steel Industries, Inc., a Delaware corporation ("ISI"), in consideration of the
mutual covenants and agreements set forth herein, and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Registration Rights.
--------- -------------------
(a) ISI shall have the right to make two requests (each of which must be
in writing) in any twelve month period to register, under the Securities Act of
1933, as amended prior hereto or subsequently (the "Securities Act"), the shares
of the Class A Common Stock of the Company received by ISI upon any conversion
of Class B Common Stock of the Company and any such shares distributed thereon
(the "Subject Stock"), and the Company shall use its best efforts to cause such
shares to be registered under the Securities Act as soon as reasonably
practicable upon receiving such a request, subject to the terms of this
Agreement. Notwithstanding the foregoing, the Company shall not be required to
comply with any such request unless such request (as contrasted with the number
of shares of Subject Stock actually sold in the offering) requests registration
of the lesser (the "Minimum Registrable Amount") of (i) 1,000,000 shares of
Subject Stock (which number shall be adjusted proportionately in the event of
any reverse stock split, stock split or other distribution by the Company of its
Class A Common Stock to all holders of Class A Common Stock), (ii) Subject Stock
having a market value of at least $25 million (based on the average closing
price of the Company's Class A Common Stock during the 20 trading days preceding
the date of the request) or (iii) any shares of Subject Stock representing ISI's
remaining ownership of such stock, if less than (i) or (ii). A pledgee of
Subject Stock may, with the consent of ISI, request registration of Subject
Stock under this Section 1(a); provided, however, that such registration
(i) shall count as a request for registration by ISI for purposes of the first
sentence of this Section 1(a) and (ii) be subject in all respects to the
provisions of this Agreement except for those set forth in the prior sentence
providing for a Minimum Registrable Amount. Upon receiving such a request, the
Company shall prepare and file, on Form S-3 if permitted or
<PAGE>
otherwise on such appropriate form, a registration statement under the
Securities Act to effect such registration.
Notwithstanding the foregoing, the Company (i) shall not be obligated to
file more than one registration statement during any four-month period, (ii)
shall not be obligated to cause any special audit to be undertaken in connection
with any such registration and (iii) shall be entitled to postpone the filing or
the effectiveness of any registration statement otherwise required to be
prepared and filed by the Company, or to suspend its other obligations under
this Agreement, including its obligations to maintain the effectiveness of such
registration statement, if (A) the Company is, at such time, conducting or
determines to conduct an underwritten public offering of Class A Common Stock
(or securities convertible into Class A Common Stock) and is advised in writing
by its managing underwriter or underwriters that the price, timing or
distribution of Class A Common Stock to be offered in such offering would in its
or their reasonable opinion be materially adversely affected by the registration
so requested or commenced, (B) the Company reasonably determines that the
registration and distribution of shares of Class A Common Stock would materially
interfere with any pending or imminent financing, acquisition, corporate
reorganization or other material transaction involving the Company or any of its
subsidiaries or (C) the Company reasonably determines that it is precluded,
either due to circumstances beyond its control or because it is unable or
unwilling for valid corporate purposes to make any disclosures which would be
required to be made therein, from filing any such registration statement or any
amendment thereto or supplementing any prospectus included therein. In the
event that the filing of such registration statement is postponed, ISI shall
have the right to withdraw the request for registration by giving written notice
to the Company within 15 days after receipt of the notice of postponement (and,
in the event of such withdrawal, such request shall be ignored for purposes of
determining the number of registrations to which ISI is entitled pursuant to
this paragraph (a)). The Company agrees that it will terminate any such
postponement as promptly as reasonably practicable and will promptly notify ISI
of such termination. In making any such determination to initiate or terminate
a postponement, the Company shall not be required to consult with or obtain the
consent of ISI, and any such determination shall be the Company's responsibility
alone, and ISI shall not be responsible or have any liability therefor.
(b) If the Company proposes to register any of its Class A Common Stock
under the Securities Act (other than pursuant to paragraph (a) hereof, and other
than (i) securities to be issued pursuant to a stock option or other employee or
director benefit or similar plan or (ii) securities proposed to be issued in
-2-
<PAGE>
exchange for securities or assets of, or in connection with a merger or
consolidation with, another corporation), the Company shall, as promptly as
practicable, give written notice of the Company's intention to effect such
registration. If, within 15 days after receipt of such notice, ISI submits a
written request to the Company specifying the amount of Subject Stock that it
proposes to sell, the Company shall use its best efforts to include the shares
specified in ISI's request in such registration statement and the Company shall
keep each such registration statement in effect and maintain compliance with
federal and state law and regulation as set forth in clause (c) below.
Notwithstanding the foregoing, if the offering of the Company's Class A Common
Stock pursuant to such registration statement is to be made by or through
underwriters, the Company shall not be required to include the Subject Stock
therein if, but only to the extent that, the underwriter managing the offering
advises the Company in writing that it reasonably believes that such inclusion
would create a substantial possibility of adversely affecting the price, timing
or distribution of the Class A Common Stock to be offered by the Company.
(c) In connection with any offering of shares of the Subject Stock
registered pursuant to this Agreement, the Company shall (i) furnish ISI such
number of copies of any prospectus (including any preliminary prospectus) as it
may reasonably request in order to effect the offering and sale of the Subject
Stock to be offered and sold, but only while the Company shall be required under
the provisions hereof to cause the registration statement to remain effective;
(ii) take such reasonable action as shall be necessary to qualify the Subject
Stock covered by such registration statement under such blue sky or other state
securities laws for offer and sale as ISI shall reasonably request; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation to do business under the laws of any jurisdiction in which it shall
not then be qualified or to file any general consent to service of process in
any jurisdiction in which such a consent has not been previously filed; (iii) at
least 5 days before filing any registration statement or any amendment or
supplement thereto, furnish to ISI and its counsel copies of such documents,
which documents will be subject to the reasonable review of ISI and such
counsel, such review to be conducted with reasonable promptness; and (iv) make
available, upon reasonable notice and during business hours, to ISI and any
attorney, accountant or other agent retained by ISI (collectively, the
"Inspectors"), for inspection by such Inspectors, all financial and other
records, pertinent corporate documents, agreements and properties of the Company
as shall be reasonably requested by ISI or such Inspectors. In connection with
any offering of the Subject Stock registered pursuant to this Agreement, the
Company shall (x) furnish to the underwriter
-3-
<PAGE>
unlegended certificates representing ownership of the Class A Common Stock being
sold in such denominations as requested and (y) instruct any transfer agent and
registrar of the Class A Common Stock to release any stop transfer orders with
respect to such Class A Common Stock. Upon any registration statement becoming
effective pursuant to this Agreement under Rule 415 of the Securities Act, the
Company shall use its best efforts, subject to the terms of this Agreement, to
keep such registration statement effective for a period not to exceed 180 days
(or such shorter period that will terminate when all Subject Stock covered by
such registration statement has been sold or such registration statement has
been withdrawn).
(d) ISI shall pay all out-of-pocket expenses incurred by ISI in connection
with any registration statement subject to Section 1(a) of this Agreement,
including, without limitation, all underwriting discounts and commissions
related to shares of the Subject Stock being sold by ISI and the fees and
disbursements of its counsel and accountants, the filing fees paid to the
Securities and Exchange Commission (the "Commission") and state securities
authorities with respect to the Subject Stock, attorney's fees in connection
with the filings made with the state securities authorities, the printing fees
in connection with such offering and filing fees and related attorney's fees
regarding the review conducted of the underwriting arrangements by the National
Association of Securities Dealers. The Company shall pay all other expenses in
connection with any registration statement subject to Section 1(a) of this
Agreement. In the case of the registration of Class A Common Stock under
Section 1(b) of this Agreement, each of the Company and ISI shall be exclusively
responsible for the fees and expenses of its own respective counsel and
accountants. All other expenses of an offering under Section 1(b) shall be
allocated between the Company and ISI on a proportional basis according to the
number of shares included by each in the offering.
(e) In the case of any offering registered pursuant to this Agreement, the
Company agrees to indemnify and hold ISI and each person who controls ISI within
the meaning of Section 15 of the Securities Act and the directors and officers
of ISI harmless against any and all losses, claims, damages or liabilities
(including reasonable legal fees and other reasonable expenses incurred in the
investigation and defense thereof) to which they or any of them may become
subject under the Securities Act or any other statute or common law or
otherwise, insofar as any such losses, claims, damages, liabilities or actions
shall arise out of or shall be based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the sale of such Subject Stock, or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements
-4-
<PAGE>
therein, in light of the circumstances under which they were made, not
misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the prospectus (as amended or supplemented if the
Company shall have filed with the Commission any amendment thereof or supplement
thereto), or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the
indemnification agreement contained in this paragraph (e) shall not apply to
such losses, claims, damages, liabilities or actions which shall arise out of or
shall be based upon any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, which (x) shall have been made in
reliance upon and in conformity with information furnished in writing to the
Company by ISI or any underwriter for ISI, as the case may be, specifically for
use in connection with the preparation of the registration statement or
prospectus contained in the registration statement or any such amendment thereof
or supplement thereto or (y) contained in any preliminary prospectus (or any
prospectus), which untrue statement or omission or alleged untrue statement or
omission was corrected in the prospectus (or in a supplement thereto) if ISI or
an underwriter sold the Subject Stock to the person alleging such loss,
liability, claim, damage or expense without sending or giving, at or prior to
the final written confirmation of such sale, a copy of the prospectus (or of the
prospectus as amended or supplemented) if the Company had previously complied
with the request of ISI or such underwriter for copies thereof.
(f) In the case of each offering registered pursuant to this Agreement,
ISI shall agree, in the same manner and to the same extent as set forth in
paragraph (e) of this Agreement, severally to indemnify and hold harmless the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, and the directors and officers of the Company,
with respect to any statement in or omission from such registration statement or
prospectus contained in such registration statement (as amended or as
supplemented, if amended or supplemented as aforesaid), if such statement or
omission shall have been made in reliance upon and in conformity with
information furnished in writing to the Company by ISI or such underwriter, as
the case may be, specifically for use in connection with the preparation of such
registration statement or prospectus contained in such registration statement or
any such amendment thereof or supplement thereto.
(g) Each party indemnified under paragraph (e) or (f) of this Agreement
shall, promptly after receipt of notice of the commencement of any action
against such indemnified party in respect of which indemnity may be sought
hereunder, notify the indemnifying party in writing of the commencement thereof.
The
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omission of any indemnified party to so notify an indemnifying party of any such
action shall not relieve the indemnifying party from any liability in respect of
such action which it may have to such indemnified party on account of the
indemnity agreement contained in paragraph (e) or (f) of this Agreement, unless
(and only to the extent) the indemnifying party was prejudiced by such omission,
and in no event shall relieve the indemnifying party from any other liability
which it may have to such indemnified party. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may desire, jointly with any
other indemnifying party similarly notified, to assume the defense thereof with
counsel selected by it serving as counsel for all indemnified parties, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under paragraph (e) or (f) of this Agreement for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, other than reasonable costs of
investigation (unless such indemnified party reasonably objects to such
assumption on the grounds that counsel selected by the indemnifying party faces
a conflict of interest in also representing the indemnified party, in which
event the indemnified party shall be reimbursed by the indemnifying party for
the reasonable expenses incurred in connection with retaining separate legal
counsel).
(h) To the extent a party is prohibited by law from performing the
indemnity provided by this Agreement, it shall, in lieu thereof, contribute to
such losses, claims, damages or liabilities to the maximum extent permitted by
law and the above provisions to the extent applicable to such contribution shall
be followed.
Section 2. Limitations on Registration Rights.
--------- ----------------------------------
(a) Termination of Registration Rights. The right of ISI to request the
registration of the Subject Stock under this Agreement shall continue until
counsel to the Company, which shall be reasonably acceptable to ISI, delivers an
opinion to the Company that public distribution of all remaining shares of the
Subject Stock in one transaction shall not require registration under the
Securities Act.
(b) Rule 144. With a view to making available to ISI the benefits of
certain rules and regulations of the Commission which may permit the sale of
Class A Common Stock to the public without registration, the Company agrees,
after such time as a public market exists for the Class A Common Stock, to:
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(i) make and keep public information available as those terms are
understood and defined in Rule 144;
(ii) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(iii) furnish to ISI forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144,
and of the Exchange Act, a copy of the most recent annual or quarterly
report of the Company filed with the Commission, if any, and such other
reports and documents of the Company and other information in the
possession of or reasonably obtainable by the Company as ISI may reasonably
request in availing itself of any rule or regulation of the Commission
allowing it to sell securities without registration under the Securities
Act.
(c) Rule 415. ISI may require that the registration statement filed under
Section 1(a) be filed pursuant to Rule 415 under the Securities Act, provided,
however, the Company shall not be required to file a registration statement
pursuant to Rule 415 if the Company is not eligible to file the registration
statement on Form S-3 or any form adopted in place thereof.
(d) Restrictions on Public Sale. ISI agrees not to effect any public sale
or distribution of any Subject Stock, or any securities convertible into or
exchangeable or exercisable for such securities (including a sale pursuant to
Rule 144 under the Act), during the 14 days prior to, and during the 90-day
period beginning on, the effective date of a registration statement filed by the
Company during the period that ISI may request registration of Subject Stock
pursuant to Section 1(a) of this Agreement (except as part of such
registration), if and to the extent requested in writing (with reasonable prior
notice) by the Company in the case of a non-underwritten public offering or by
the Company or the managing underwriter or underwriters in the case of an
underwritten public offering.
(e) Cessation of Sales for Major Transactions and Material Information.
ISI agrees that, upon receipt of notice from the Company of any determination
specified in clause (iii)(A), (b) or (C) of the second paragraph of Section
1(a), ISI will immediately discontinue dispositions pursuant to any registration
statement filed pursuant to this Agreement. In the event the Company shall give
any such notice, the 180-day period mentioned in Section 1(c) shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to this clause of Section 2 to and including the
date when ISI receives notice from the Company that ISI may resume dispositions
of Subject Stock pursuant to such registration statement.
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(f) ISI's Duty to Report. In respect of a registration pursuant to this
Agreement, ISI shall advise the Company immediately if ISI knows or becomes
aware of any matter which ISI believes may result in the inclusion in a
prospectus contained in such registration statement of an untrue statement of a
material fact or the omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall promptly
notify the Company and assist the Company in preparation and filing with the
Commission of any such amendments or supplements to said registration statement
that may be necessary or appropriate to permit the prospectus included therein
to be used under the Securities Act during the period during which the
prospectus must be delivered in connection with the offering and sale of Subject
Stock.
(g) ISI's Duty to Cooperate. The Company may require ISI to furnish to
the Company such information regarding the distribution of Subject Stock and
such other information relating to ISI and its ownership of Subject Stock as the
Company may from time to time reasonably request and ISI agrees to furnish the
Company with such information and to cooperate with the Company as necessary to
enable the Company to comply with the provisions of this Agreement.
(h) Cessation of Sales When Prospectus is Misleading. Upon receipt of any
notice from the Company of the happening of any event as a result of which the
prospectus included in such registration statement (as then in effect) contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, ISI will
immediately discontinue disposition of the Subject Stock until ISI receives
copies of the supplemented or amended prospectus contemplated by subsection (c)
of Section 1 or until it is advised in writing (the "Advice") by the Company
that the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus. If so directed by the Company, ISI will, or will request the
managing underwriter or agent, if any, to, deliver to the Company all copies
(other than permanent file copies then in ISI's possession) of the prospectus
covering such Subject Stock current at the time of receipt of such notice. In
the event the Company shall give any such notice, the 180-day time period
mentioned in subsection (c) of Section 1 shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when ISI shall have received the copies of the
supplemented or amended prospectus contemplated by subsection (c) of Section 1
hereof or the Advice.
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(i) Underwriting Arrangements. ISI may not participate in any
underwritten registration under Section 1(b) or demand an underwritten
registration under Section 1(a) unless ISI agrees to execute an underwriting
agreement with such underwriter provided, however, that such underwriting
agreement must be reasonably satisfactory to ISI and must be in customary form.
In the case of an underwritten offering registered pursuant to the terms of this
Agreement, the Company agrees, at the request of ISI, to execute an underwriting
agreement with such underwriters, provided, however, that such underwriting
agreement must be reasonably satisfactory to the Company and must be in
customary form.
Section 3. Specific Performance.
Each of the parties hereto recognizes and acknowledges that a breach by it
of any covenants or agreements contained in this Agreement will cause the other
party to sustain damages for which it would not have an adequate remedy at law
for money damages, and therefore each of the parties hereto agrees that in the
event of any such breach the aggrieved party shall be entitled to the remedy of
the specific performance of such covenants and agreements and injunctive and
other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
Section 4. Notices.
All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given when (a) delivered in person, (b)
deposited in the United States mail or private express mail, postage prepaid, or
(c) sent by facsimile (with a machine confirmation of receipt) addressed as
follows:
If to ISI, to: Inland Steel Industries, Inc.
30 West Monroe Street
Chicago, Illinois 60603
Facsimile: 312-899-3921
Attention: Vice President and
General Counsel
If to the Company, to: Ryerson Tull, Inc.
2621 West 15th Place
Chicago, Illinois 60608
Facsimile: 312-899-3214
Attention: Corporate Secretary
Any party may, by notice to the other party, change the address to which such
notices are to be given.
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Section 5. Severability.
Whenever possible, each provision of this Agreement will be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited by or invalid under
applicable law, such prohibition or invalidity shall only apply to such
provision, without invalidating the remainder of this Agreement.
Section 6. Assignment.
This Agreement and all of the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that in the case of multiple assignees, in order for
any assignee to exercise any rights under this Agreement, all assignees must
agree among themselves, in a manner reasonably acceptable to the Company, to
exercise their rights under this Agreement in a manner that will not increase
the Company's burdens under this Agreement.
Section 7. Governing Law.
This Agreement and the legal relations among the parties hereto shall be
governed by and construed in accordance with the laws of the State of Illinois,
without regard to its conflicts of law doctrine.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of June 26, 1996.
Ryerson Tull, Inc.
By: /s/ Jay M. Gratz
--------------------------
Jay M. Gratz
Title: Vice President
--------------------
Inland Steel Industries, Inc.
By: /s/ Vicki L. Avril
--------------------------
Vicki L. Avril
Title: Treasurer
--------------------
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EXHIBIT 10.12
CORPORATE SEPARATION AGREEMENT
THIS CORPORATE SEPARATION AGREEMENT, dated June 26, 1996, is by and among
Inland Steel Industries, Inc., a Delaware corporation ("Inland"), and Ryerson
Tull, Inc., a Delaware corporation ("Ryerson Tull"). Capitalized terms used
herein and not otherwise defined shall have the respective meanings assigned to
them in Article I hereof.
WHEREAS, the Board of Directors of Inland has determined that it is in the
best interests of Inland and its stockholders for Ryerson Tull to issue and sell
in an initial public offering up to 15% of the common stock of Ryerson Tull; and
WHEREAS, it is appropriate and desirable to set forth certain agreements
governing the relationship between Inland and Ryerson Tull and their respective
Subsidiaries following such initial public offering.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement the following terms shall have the
following meanings:
"Action" means any demand, action, suit, countersuit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority or any
arbitration or mediation tribunal.
"Affiliate" of any Person means a Person that Controls, is Controlled by,
or is under common Control with such Person.
"Agreement" means this Corporate Separation Agreement, as it may be
amended, modified or supplemented from time to time.
"Allocated Amount" has the meaning set forth in Section 3.2.
"Class A Common Stock" means the Class A Common Stock, $1.00 par value, of
Ryerson Tull.
"Class B Common Stock" means the Class B Common Stock, $1.00 par value, of
Ryerson Tull.
"Closing Date" means the first time at which any shares of Class A Common
Stock of Ryerson Tull are sold to the Underwriters pursuant to the IPO in
accordance with the terms of the Underwriting Agreement.
"Control" means the possession, directly or indirectly, by any Person of
the power to direct or cause the direction of the management and policies of
another Person, whether through ownership of voting securities or other
interests, by contract or otherwise.
<PAGE>
"Cross-License Agreement" means the Cross-License Agreement dated the date
hereof between Inland and Ryerson Tull, as it may be amended, modified or
supplemented from time to time.
"Environmental Law" means any federal, state, local, foreign or
international statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, common law (including tort and environmental
nuisance law), legal doctrine, order, judgment, decree, injunction, requirement
or agreement with any Governmental Authority, now or hereafter in effect
relating to health, safety, pollution or the environment (including ambient air,
surface water, groundwater, land surface or subsurface strata) or to emissions,
discharges, releases or threatened releases of any substance currently or at any
time hereafter listed, defined, designated or classified as hazardous, toxic,
waste, radioactive or dangerous, or otherwise regulated, under any of the
foregoing, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of any such substances,
including the Comprehensive Environmental Response, Compensation and Liability
Act, the Superfund Amendments and Reauthorization Act and the Resource
Conservation and Recovery Act and comparable provisions in state, local, foreign
or international law.
"Environmental Liabilities" means all Liabilities relating to, arising out
of or resulting from any Environmental Law or contract or agreement (or
provision thereof) relating to environmental, health or safety matters
(including all removal, remediation or cleanup costs, investigatory costs,
governmental response costs, natural resources damages, property damages,
personal injury damages, costs of compliance with any settlement, judgment or
other determination of Liability and indemnity, contribution or similar
obligations) and all costs and expenses (including allocated costs of in-house
counsel and other personnel), interest, fines, penalties or other monetary
sanctions in connection therewith.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESOP Guarantee" means the Guaranty and Contingent Purchase Agreement dated
as of August 15, 1990 between Joseph T. Ryerson & Son, Inc., a Subsidiary of
Ryerson Tull, and the note purchasers named therein relating to $146,913,151
original aggregate principal amount of Guaranteed ESOP Notes issued by the
Inland Steel Industries Thrift Plan ESOP Trust.
"Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"Group" means either the Inland Group or the Ryerson Tull Group, as the
context requires.
"Indemnifying Party" has the meaning set forth in Section 4.5(a).
"Indemnitee" means an Inland Indemnitee or a Ryerson Tull Indemnitee, as
the case may be.
"Information" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
form, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings,
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blueprints, diagrams, models, prototypes, samples, flow charts, data, computer
data, disks, diskettes, tapes, computer programs or other software, marketing
plans, customer names, communications by or to attorneys (including attorney-
client privileged communications), memoranda and other materials prepared by
attorneys or under their direction (including attorney work product), and other
technical, financial, employee or business information or data.
"Inland" has the meaning set forth in the opening paragraph.
"Inland Group" means Inland and each Person (other than any member of the
Ryerson Tull Group) that is an Affiliate of Inland as of the Tull Closing Date
and at any time thereafter.
"Inland Indemnitees" has the meaning set forth in Section 4.1.
"Inland Lease Guaranty" means the guaranty by Inland of the obligations of
members of the Ryerson Tull Group, as lessee, under existing equipment leases
having rentals payable thereunder for the balance of the lease terms not in
excess of $5,000,000 in the aggregate.
"Insurance Proceeds" means those monies: (a) received by an insured from an
insurance carrier; or (b) paid by an insurance carrier on behalf of the insured;
in any such case net of any applicable premium adjustments (including reserves
and retrospectively rated premium adjustments) and net of any costs or expenses
(including allocated costs of in-house counsel and other personnel) incurred in
the collection thereof.
"IPO" means the initial public offering by Ryerson Tull of shares of its
Class A Common Stock pursuant to the Registration Statement on Form S-1, as
amended (No. 333-3229), originally filed by Ryerson Tull with the Securities and
Exchange Commission on May 7, 1996.
"Joint Marketing Period" means the period commencing on the date hereof and
ending June 30, 2001; provided, however, that the Joint Marketing Period may be
terminated at any time by the mutual consent of Inland and Ryerson Tull or by
either party upon sixty (60) days prior written notice to the other.
"Liabilities" means any and all losses, claims, charges, debts, demands,
actions, causes of action, suits, damages, obligations, payments, costs and
expenses, whether absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, and
including those arising under any law, rule, regulation, Action, threatened or
contemplated Action (including the costs and expenses of demands, assessments,
judgments, settlements and compromises relating thereto and attorneys' fees and
any and all costs and expenses (including allocated costs of in-house counsel
and other personnel), whatsoever reasonably incurred in investigating, preparing
or defending against any such Actions or threatened or contemplated Actions),
order or consent decree of any Governmental Authority or any award of any
arbitrator or mediator of any kind, and those arising under any contract,
commitment or undertaking, including those arising under this Agreement whether
or not recorded or reflected or required to be recorded or reflected on the
books and records or financial statements of any Person.
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"Operating Asset Ratio" means the ratio, determined by Inland in good faith
from time to time, of the consolidated operating assets of Ryerson Tull to the
total consolidated operating assets of Inland.
"Person" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity and any Governmental Authority.
"Ryerson Tull" has the meaning set forth in the opening paragraph.
"Ryerson Tull Group" means Ryerson Tull, each Subsidiary of Ryerson Tull
and each other Person that is controlled directly or indirectly by Ryerson Tull
as of the Closing Date and at any time thereafter.
"Ryerson Tull Indemnitees" has the meaning set forth in Section 4.2.
"Services" has the meaning set forth in Section 3.1.
"Services Period" means the period commencing on the date hereof and ending
June 30, 2001; provided, however, that the Services Period may be terminated at
any time by the mutual consent of Inland and Ryerson Tull or by either party
upon sixty (60) days prior written notice to the other.
"Subsidiary" of any Person means any corporation or other organization,
whether incorporated or unincorporated, of which securities or interests having
by the terms thereof ordinary voting power to elect at least a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or Controlled
by such Person or by any one or more of its Subsidiaries or by such Person and
one or more of its Subsidiaries; provided, however that no Person that is not
directly or indirectly wholly owned by any other Person shall be a Subsidiary of
such other Person unless such other Person Controls, or has the right, power or
ability to Control, that Person.
"Tax Sharing Agreement" means the Tax Sharing Agreement, dated as of the
date hereof by and between Inland and Ryerson Tull, as it may be amended,
modified or supplemented from time to time.
"Taxes" means income, gross receipts, franchise, sales, use, rental,
turnover, business, occupation, excise, value-added, tangible and intangible
personal property and stamp taxes, levies, assessments, imposts, duties, charges
or withholdings of any nature, together with any and all penalties, additions to
tax, fines or interest thereon imposed upon any member of the Inland Group or
the Ryerson Tull Group by any federal, state or local government, political
subdivision or taxing authority in the United States or its possessions, by any
government or taxing authority of or in a foreign country or by any
international authority.
"Third Party Claim" has the meaning set forth in Section 4.5(a).
"Underwriters" means the managing underwriters for the IPO.
"Underwriting Agreement" means the underwriting agreement dated June 20,
1996 among Ryerson Tull and the Underwriters with respect to the IPO.
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ARTICLE II
SEPARATE CORPORATE EXISTENCE
2.1. CORPORATE SEPARATION. For so long as the number of shares of Class B
Common Stock outstanding shall represent not less than 50 percent of the sum of
the number of outstanding shares of Class B Common Stock and the number of
outstanding shares of Class A Common Stock, each of Ryerson Tull and Inland
shall observe the applicable legal requirements for its recognition as a
corporation separate and apart from each member of the other's Group. Without
limiting the generality of the foregoing, Ryerson Tull and Inland shall each
take such actions during such period as shall be reasonably required in order
that:
(a) Any transaction between any member of the Ryerson Tull Group and
any member of the Inland Group will be the type of transaction which would
be entered into by a prudent Person in the position of such member of the
Ryerson Tull Group with a member of the Inland Group, and will be on terms
that are at least as favorable (but no more favorable) as may be obtained
from a Person that is not a member of the Inland Group.
(b) Ryerson Tull shall observe all corporate formalities, including,
without limitation, (i) the maintenance of corporate records, books of
account and stationery for each member of the Ryerson Tull Group separate
from those of every member of the Inland Group and (ii) the holding of
regular meetings of its board of directors and stockholders.
(c) Ryerson Tull shall have its own executive officers who shall not
be officers or employees of Inland or any other member of the Inland Group,
provided that Ryerson Tull's Chairman of the Board, its Chief Executive
Officer and up to one-half of the remaining executive officers of Ryerson
Tull may be officers or employees of Inland or another member of the Inland
Group.
(d) Ryerson Tull and Inland shall each maintain the assets of each
member of its Group separate from those of the members of the other's
Group.
(e) Except as contemplated by the Tax Sharing Agreement, Ryerson Tull
and Inland shall each account for and manage the liabilities of each member
of its Group separately from those of the other and members of the other's
Group, including payment of all payroll and administrative expenses and
related taxes from its own assets; provided that any member of the Inland
Group may incur and pay expenses on behalf of any member of the Ryerson
Tull Group as contemplated hereunder, which expenses will be reimbursed as
provided herein.
(f) Ryerson Tull and Inland each shall (i) maintain financial records
separate and apart from the other, (ii) prepare, not less than quarterly,
consolidated financial statements, and (iii) prepare annual consolidated
audited financial statements (consisting of, at least, a balance sheet and
statements of income and cash flows).
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(g) Ryerson Tull will conduct its business at offices separate from
the offices of members of the Inland Group, which offices of Ryerson Tull
may consist of office space shared with a member of the Inland Group, a
portion of which is allocated solely to Ryerson Tull; provided that where
common facilities are used, the allocation of costs are in accordance with
paragraph (a) of this Section 2.1.
(h) Other than the ESOP Guarantee and the Inland Lease Guaranty, no
member of the Ryerson Tull Group nor any member of the Inland Group shall
pledge its assets for the benefit of, or grant guarantees or otherwise hold
out its credit as being available to satisfy the obligations of, any member
of the other's Group.
ARTICLE III
SUPPORT SERVICES
3.1. SERVICES TO BE RENDERED. Inland shall render to members of the
Ryerson Tull Group from time to time during the Services Period, upon request of
Ryerson Tull, routine and ordinary services consistent with past practice and
which Inland can provide with its staff, facilities and resources (the
"Services"), including, but not limited to the following:
(a) accounting and auditing services;
(b) bonding requirements;
(c) computer systems (including physical computers, applications,
electronic mail and support);
(d) pension and employee benefit plan administration, including
management, sales and purchases of pensions assets, Internal Revenue
Service and Pension Benefit Guaranty Corporation reporting, and funding and
reporting calculations;
(e) financial and cash management, debt administration and management
of banking relationships;
(f) government relations;
(g) insurance and related risk management;
(h) investor and public relations;
(i) services of the Inland law department, including the corporate
secretary functions;
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(j) tax administration (including Federal income, state income, local
income and property tax preparation, filing and contesting returns and
valuations);
(k) human resources;
(l) information technology;
(m) office space at 30 West Monroe Street, Chicago, Illinois 60603;
and
(n) senior management support services.
3.2. COMPENSATION. For the Services rendered by Inland to members of the
Ryerson Tull Group pursuant to this Article III, Ryerson Tull shall pay to
Inland a fee (the "Allocated Amount") equal to (i) the specific distinguishable
costs incurred by Inland in providing the Services, such as directly related
out-of-pocket expenses including, without limitation, tax payments, legal fees
and lease payments, and (ii) a proration (based on the Operating Asset Ratio) of
all corporate administrative expenses incurred by Inland which are not (x)
otherwise charged under the foregoing clause (i) or (y) specifically
distinguishable costs incurred by Inland for the account of any member of the
Inland Group. The Allocated Amounts are intended to allow Inland only to
recover its costs and expenses without realizing any profit. The Allocated
Amounts will be invoiced at the end of each month during the Services Period,
and Ryerson Tull shall pay to Inland such invoiced amounts within 30 days of
receipt of the invoice. If Ryerson Tull is restricted at any time from making
payment of the Allocated Amounts due to restrictions in its financing
arrangements, or otherwise, the amounts then due hereunder shall accrue interest
at the prime rate of Ryerson Tull's lead commercial bank.
3.3. JOINT MARKETING EFFORTS. Ryerson Tull and Inland agree during the
Joint Marketing Period to cooperate in the joint marketing efforts currently
known as the "red diamond program" (or any successor program) intended to
maximize the satisfaction of customers of Ryerson Tull and/or Inland. Neither
Ryerson Tull nor Inland is entitled to fees or to be reimbursed for any expenses
in connection with the joint marketing efforts contemplated by this Section 3.3.
3.4. PREVENTION OF PERFORMANCE. Neither Ryerson Tull nor Inland shall be
determined to be in violation of this Agreement if it is prevented from
performing any of its obligations hereunder for any reason beyond its reasonable
control, including without limitation, acts of God, nature, or public enemy,
strikes, or limitations of law, regulations or rules of the Federal or of any
state or local government or of any agency thereof.
3.5. NO WARRANTIES. By agreeing to provide the Services as an
accommodation to members of the Ryerson Tull Group and to participate in the
joint marketing efforts contemplated by Section 3.3, neither Ryerson Tull nor
Inland is making any representations or warranties as to the quality,
suitability or adequacy of the Services or such joint marketing efforts for any
purpose or use. In providing the Services and participating in the joint
marketing efforts contemplated by Section 3.3, neither Ryerson Tull nor Inland
shall be obligated to (i) hire any additional employees; (ii) maintain the
employment of any specific current employee; or (iii) purchase, lease or license
any additional equipment, software or facility.
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3.6. INDEPENDENT CONTRACTOR. It is expressly agreed that Ryerson Tull and
Inland are at all times each acting and performing hereunder as an independent
contractor and not as agent for the other, and that no act of commission or
omission of either party hereto shall be construed to make or render the other
party its principal, agent, joint venturer or associate, except to the extent
specified herein. Neither Ryerson Tull nor Inland assumes any responsibility
under this Article other than to render the Services called for under this
Article or the joint marketing efforts contemplated by Section 3.3 in good faith
and shall have no liability to the other except for gross negligence or wilful
misconduct. Ryerson Tull's and Inland's sole remedy on account of the failure
of the other to render the Services or participate in joint marketing efforts as
contemplated by Section 3.3 as and when required hereunder shall be to procure
such services elsewhere.
ARTICLE IV
INDEMNIFICATION
4.1. INDEMNIFICATION BY RYERSON TULL. Ryerson Tull shall indemnify, defend
and hold harmless Inland, each other member of the Inland Group and each of
their respective directors, officers, employees and agents, and each of the
heirs, executors, successors and assigns of any of the foregoing (collectively,
the "Inland Indemnitees"), from and against any and all Liabilities of the
Inland Indemnitees relating to, arising out of or resulting from:
(a) the business or operations of any member of the Ryerson Tull Group
prior to the Closing Date including, without limitation, Liabilities
for Taxes, Environmental Liabilities and Liabilities under ERISA and
employee benefit plans; or
(b) the Control of Ryerson Tull by Inland in circumstances where, as
between members of the Inland Group and members of the Ryerson
Tull Group, the Person which is primarily obligated on such Liability
is a member of the Ryerson Tull Group.
4.2. INDEMNIFICATION BY INLAND. Inland shall indemnify, defend and hold
harmless Ryerson Tull, each other member of the Ryerson Tull Group and each of
their respective directors, officers, employees and agents, and each of the
heirs, executors, successors and assigns of any of the foregoing (collectively,
the "Ryerson Tull Indemnitees"), from and against any and all Liabilities of the
Ryerson Tull Indemnitees relating to, arising out of or resulting from:
(a) the business or operations of any member of the Inland Group prior to
the Closing Date including, without limitation, Liabilities for Taxes,
Environmental Liabilities and Liabilities under ERISA and employee
benefit plans; or
(b) the Control of Ryerson Tull by Inland in circumstances where, as
between members of the Inland Group and members of the Ryerson Tull
Group, the Person which is primarily obligated on such Liability is a
member of the Inland Group.
4.3. LIMITATION. No Indemnitee shall be entitled to indemnification under
Section 4.1 or 4.2 from and against any Liability relating to, arising out of or
resulting from its own or any member of its Group's negligence or wilful
misconduct; provided that if a Liability relates to, arises out of or results
from the negligence
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<PAGE>
of both a member of the Inland Group and a member of the Ryerson Tull Group,
then the responsibility of each such Person shall be shared in proportion to
their relative degrees of negligence.
4.4. INSURANCE PROCEEDS. The parties intend that any Liability subject to
indemnification or reimbursement pursuant to this Article IV will be net of
Insurance Proceeds that actually reduce the amount of the Liability.
4.5. THIRD PARTY CLAIMS. (a) If an Indemnitee shall receive notice or
otherwise learn of the assertion by a Person (including any Governmental
Authority) who is not a member of the Inland Group or the Ryerson Tull Group of
any claim or of the commencement by any such Person of any Action (collectively,
a "Third Party Claim") with respect to which the other party (the "Indemnifying
Party") may be obligated to provide indemnification to such Indemnitee pursuant
to Section 4.1 or 4.2, such Indemnitee shall give such Indemnifying Party
written notice thereof within 20 days after becoming aware of such Third Party
Claim. Any such notice shall describe the Third Party Claim in reasonable
detail. Notwithstanding the foregoing, the failure of any Indemnitee or other
Person to give notice as provided in this Section 4.5(a) shall not relieve the
related Indemnifying Party of its obligations under this Article IV, except to
the extent that such Indemnifying Party is actually prejudiced by such failure
to give notice.
(b) An Indemnifying Party may elect to defend (and, unless the Indemnifying
Party has specified any reservations or exceptions, to seek to settle or
compromise), at such Indemnifying Party's own expense and by such Indemnifying
Party's own counsel, any Third Party Claim. Within 30 days after the receipt of
notice from an Indemnitee in accordance with Section 4.5(a) (or sooner, if the
nature of such Third Party Claim so requires), the Indemnifying Party shall
notify the Indemnitee of its election as to whether the Indemnifying Party will
assume responsibility for defending such Third Party Claim, which election
shall specify any reservations or exceptions. After notice from an Indemnifying
Party to an Indemnitee of its election to assume the defense of a Third Party
Claim, such Indemnitee shall have the right to employ separate counsel and to
participate in (but not control) the defense, compromise, or settlement thereof,
but the fees and expenses of such counsel shall be the expense of such
Indemnitee except as set forth in the next sentence. In the event that the
Indemnifying Party has elected to assume the defense of the Third Party Claim
but has specified, and continues to assert, any reservations or exceptions in
such notice, then, in any such case, the reasonable fees and expenses of one
separate counsel for all Indemnitees shall be borne by the Indemnifying Party.
(c) If an Indemnifying Party elects not to assume responsibility for
defending a Third Party Claim, or fails to notify an Indemnitee of its election
as provided in Section 4.5(b), such Indemnitee may defend such Third Party Claim
at the cost and expense (including allocated costs of in-house counsel and other
personnel) of the Indemnifying Party.
(d) Unless the Indemnifying Party has failed to assume the defense of the
Third Party Claim in accordance with the terms of this Agreement, no Indemnitee
may settle or compromise any Third Party Claim without the consent of the
Indemnifying Party.
(e) No Indemnifying Party shall consent to entry of any judgment or enter
into any settlement of the Third Party Claim without the consent of the
Indemnitee if the effect thereof is to permit any injunction, declaratory
judgment, other order or other nonmonetary relief to be entered, directly or
indirectly, against any Indemnitee.
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<PAGE>
4.6. ADDITIONAL MATTERS. (a) Any claim on account of a Liability which
does not result from a Third Party Claim shall be asserted by written notice
given by the Indemnitee to the related Indemnifying Party. Such Indemnifying
Party shall have a period of 30 days after the receipt of such notice within
which to respond thereto. If such Indemnifying Party does not respond within
such 30-day period, such Indemnifying Party shall be deemed to have refused to
accept responsibility to make payment. If such Indemnifying Party does not
respond within such 30-day period or rejects such claim in whole or in part,
such Indemnitee shall be free to pursue such remedies as may be available to
such party as contemplated by this Agreement.
(b) In the event of payment by or on behalf of any Indemnifying Party to
any Indemnitee in connection with any Third Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any right,
defense or claim relating to such Third Party Claim against any claimant or
plaintiff asserting such Third Party Claim or against any other person. Such
Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner,
and at the cost and expense (including allocated costs of in-house counsel and
other personnel) of such Indemnifying Party, in prosecuting any subrogated
right, defense or claim.
(c) In the event of an Action in which the Indemnifying Party is not a
named defendant, if either the Indemnified Party or Indemnifying Party shall so
request, the parties shall endeavor to substitute the Indemnifying Party for the
named defendant, if at all practicable. If such substitution or addition cannot
be achieved for any reason or is not requested, the named defendant shall allow
the Indemnifying Party to manage the Action as set forth in this Section. The
Indemnifying Party shall fully indemnify the named defendant against all costs
of defending the Action (including court costs, sanctions imposed by a court,
attorneys' fees, experts' fees and all other external expenses, and the
allocated costs of in-house counsel and other personnel), the costs of any
judgment or settlement, and the cost of any interest or penalties relating to
any judgment or settlement.
4.7. REMEDIES CUMULATIVE. The remedies provided in this Article IV shall
be cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
ARTICLE V
CONFIDENTIALITY
5.1. CONFIDENTIAL INFORMATION. Subject to Section 5.2, each of Inland or
Ryerson Tull, on behalf of itself and each member of its respective Group,
agrees to hold, and to cause its respective directors, officers, employees,
agents, accountants, counsel and other advisors and representatives to hold, in
strict confidence, with at least the same degree of care that applies to
Inland's confidential and proprietary information pursuant to policies in effect
as of the Closing Date, all Information concerning each such other Group that is
either in its possession (including Information in its possession prior to the
date hereof or the Closing Date) or furnished by any such other Group or its
respective directors, officers, employees, agents, accountants, counsel and
other advisors and representatives at any time pursuant to this Agreement or
otherwise, and shall not use any such Information other than for such purposes
as shall be expressly permitted hereunder or thereunder, except, in each case,
to the extent that such Information has been (i) in the public domain through no
fault of such party or any member of such Group or any of their respective
directors, officers, employees, agents, accountants, counsel and other advisors
and representatives, (ii) later lawfully acquired from other sources by such
party (or any member of such party's Group) which sources are not themselves
bound by a confidentiality
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<PAGE>
obligation, or (iii) independently generated without reference to any
proprietary or confidential Information of the other party.
5.2. PROTECTIVE ARRANGEMENTS. In the event that any party or any member of
its Group either determines on the advice of its counsel that it is required to
disclose any Information pursuant to applicable law or receives any demand under
lawful process or from any Governmental Authority to disclose or provide
Information of any other party (or any member of any other party's Group) that
is subject to the confidentiality provisions hereof, such party shall notify the
other party prior to disclosing or providing such Information and shall
cooperate at the expense of the requesting party in seeking any reasonable
protective arrangements requested by such other party. Subject to the foregoing,
the Person that received such request may thereafter disclose or provide
Information to the extent required by such law (as so advised by counsel) or by
lawful process or such Governmental Authority.
ARTICLE VI
MISCELLANEOUS
6.1. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
6.2. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
previous agreements, negotiations, discussions, writings, understandings,
commitments and conversations with respect to such subject matter.
6.3. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
6.4. ASSIGNABILITY. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that no party hereto may assign its respective rights or
delegate its respective obligations under this Agreement without the express
prior written consent of the other party hereto.
6.5. NOTICES. All notices or other communications under this Agreement
shall be in writing and shall be deemed to be duly given when (a) delivered in
person, (b) deposited in the United States mail or private express mail, postage
prepaid, or (c) sent by facsimile (with a machine confirmation of receipt)
addressed as follows:
If to Inland, to: Inland Steel Industries, Inc.
30 West Monroe Street
Chicago, Illinois 60603
Facsimile: (312) 899-3921
Attention: Vice President and General Counsel
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If to Ryerson Tull, to: Ryerson Tull, Inc.
2621 West 15th Place
Chicago, Illinois 60608
Facsimile: (312) 899-3214
Attention: Corporate Secretary
Any party may, by notice to the other party, change the address to which such
notices are to be given.
6.6. SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provisions
hereof or thereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby or thereby, as the case
may be, is not affected in any manner adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
6.7. AMENDMENTS. No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by any party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the party against whom it is sought to enforce such waiver,
amendment, supplement or modification.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives.
INLAND STEEL INDUSTRIES, INC.
By: /s/Vicki L. Avril
--------------------------
Name: Vicki L. Avril
--------------------------
Title: Treasurer
--------------------------
RYERSON TULL, INC.
By: /s/Jay M. Gratz
--------------------------
Name: Jay M. Gratz
--------------------------
Title: Vice President
---------------------------
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EXHIBIT 10.13
CROSS-LICENSE AGREEMENT
This Agreement ("Agreement") is entered into this 26th day of June, 1996,
by and between INLAND STEEL INDUSTRIES, INC., a Delaware corporation ("ISI"),
and RYERSON TULL, INC., a Delaware corporation ("Ryerson Tull").
WHEREAS, ISI is the owner of all right, title and interest in and to the
property listed on Schedule 1 hereto (the "Designated ISI Intellectual
Property") together with the goodwill associated therewith;
WHEREAS, Ryerson Tull is the owner of all right, title and interest in and
to the property and know-how listed on Schedule 2 hereto (the "Designated
Ryerson Tull Intellectual Property") together with the goodwill associated
therewith;
WHEREAS, ISI is desirous of obtaining a license to use the Designated
Ryerson Tull Intellectual Property; and
WHEREAS, Ryerson Tull is desirous of obtaining a license to use the
Designated ISI Intellectual Property;
NOW, THEREFORE, it is hereby agreed as follows:
1. Definitions.
1.1 "Licensed Intellectual Property" means, collectively, the Designated
ISI Intellectual Property and the Designated Ryerson Tull Intellectual Property.
1.2 "Respective Licensed Intellectual Property" means the specific
Licensed Intellectual Property (either the Designated ISI Intellectual Property
or the Designated Ryerson Tull Intellectual Property) granted to each party
hereunder.
1.3 Given the cross-licensing provided by this Agreement, "Licensee" means
the party which receives a license from the other party for any given Licensed
Intellectual Property.
1.4 Given the cross-licensing provided by this Agreement, "Licensor" means
the party which grants a license to the other party for any given Licensed
Intellectual Property.
2. Cross-License Grants.
2.1 ISI hereby grants to Ryerson Tull for itself and for the benefit of
its subsidiaries, and Ryerson Tull hereby accepts in each such capacity, a
royalty-free license to use the Designated ISI Intellectual Property in
association with its distribution business operations throughout the world.
2.2 Ryerson Tull hereby grants to ISI for itself and its subsidiaries
(other than Ryerson Tull and its subsidiaries), and ISI hereby accepts in each
such capacity, a royalty-free license to use the Designated Ryerson
<PAGE>
Tull Intellectual Property in association with its business operations
throughout the world other than in North America.
2.3 Each Licensor shall provide such assistance in transferring the
Licensed Intellectual Property as is reasonably requested by the Licensee in
order to obtain the full benefit of the Licensed Intellectual Property.
3. Term.
The licenses granted under this Agreement with respect to the Licensed
Intellectual Property shall, unless sooner terminated as provided elsewhere in
this Agreement, terminate automatically, and with no further action on the part
of either party, when the number of outstanding shares of Class B Common Stock,
$1.00 par value ("Class B Common Stock"), of Ryerson Tull outstanding represents
less than 50% of the sum of the number of outstanding shares of Class A Common
Stock, $1.00 par value, and such outstanding shares of Class B Common Stock of
Ryerson Tull.
4. Quality Control.
4.1 Each Licensee agrees that the goods and services sold by such Licensee
under its Respective Licensed Intellectual Property shall at least be
commensurate with the nature and quality of comparable goods and services
presently offered by such Licensee, which nature and quality each Licensor deems
satisfactory.
4.2 Each Licensee agrees to provide to Licensor, at such times as Licensor
may reasonably request, specimens of the products to which such Licensee applies
its Respective Licensed Intellectual Property, samples of product labels,
packaging, advertisements, promotional materials, and any other materials which
Licensor may request which demonstrate the manner in which Licensee uses its
Respective Licensed Intellectual Property.
4.3 Each Licensor may conduct reasonable inspections during reasonable
business hours of the Licensee's facilities for the purpose of ensuring that the
quality of the goods and services are in compliance with the terms of this
Agreement. The Licensor shall supply the Licensee with ten (10) days advance
written notice regarding any such inspection.
5. Compliance.
The parties agree that the goods sold and services provided under this
Agreement shall comply with all federal, state and local laws and regulations
pertaining to such products and services.
6. Royalty; Reimbursement.
6.1 The licenses granted herein shall be royalty-free.
6.2 Each Licensee shall promptly reimburse the Licensor for reasonable
expenses incurred by the Licensor (including out-of-pocket expenses and the
mutually agreeable expense allocation of employees, based upon salary, benefits
and other personnel costs) in connection with the provision of any Licensed
Intellectual Property.
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<PAGE>
7. Ownership.
Each Licensee agrees that this Agreement is personal and does not give it
the right to assign the rights granted herein, or any right, title, or ownership
interest in its Respective Licensed Intellectual Property without the written
consent of the other party; provided, however, that (i) Ryerson Tull as Licensee
shall have the right to permit any of its subsidiaries and affiliates to use the
Designated ISI Intellectual Property in accordance with this Agreement, and (ii)
ISI as Licensee shall have the right to permit any of its subsidiaries,
affiliates and joint ventures (other than Ryerson Tull and its subsidiaries and
affiliates) to use the Ryerson Tull Designated Intellectual Property in
accordance with this Agreement. Each Licensee further agrees that it will not
challenge the validity of this Agreement or of any of the Licensor's Licensed
Intellectual Property, whether registered or not. Each Licensee further agrees
to cooperate with the Licensor and tender all documents necessary to assist the
Licensor in obtaining or maintaining state or federal registrations of
Licensor's Respective Licensed Intellectual Property.
8. Assignment.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that no party hereto may assign its respective rights or delegate its respective
obligations under this Agreement without the express prior written consent of
the other party hereto.
9. Termination.
9.1 This Agreement may be terminated at any time by the mutual consent of
ISI and Ryerson Tull or by either party upon sixty (60) days' prior written
notice to the other party.
9.2 Unless otherwise agreed to in writing by the parties, upon termination
of this Agreement, the parties will immediately discontinue all use of their
Respective Licensed Intellectual Property and shall return to the other party
all inventory of packaging, labels, materials and the like displaying such
Licensed Intellectual Property.
9.3 Following termination of this Agreement, each Licensor shall have the
right to a license (which may be exclusive) of any part of the other's Licensed
Intellectual Property for a transition period of up to two (2) years at a fair
market value license fee and upon such other terms as may be mutually agreed
upon by Licensor and Licensee. If Licensor and Licensee are unable to agree upon
such terms, the fair market value license fee and other terms shall be
determined by a qualified, independent expert selected by the accounting firm(s)
regularly employed by Licensor and Licensee.
10. Notices.
10.1 Each Licensee agrees to notify the Licensor of any and all complaints
from customers, consumers, or any state or government agency with regard to the
goods and services offered under its Respective Licensed Intellectual Property,
to keep accurate records with regard thereto and to furnish copies of such
records to the other party upon request. Each Licensee also agrees to notify the
Licensor of any and all lawsuits brought which involve its Respective Licensed
Intellectual Property.
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<PAGE>
10.2 Each Licensee agrees to promptly notify the Licensor of any use of
names, package designs, labels or configurations that may come to its attention
which are similar to its Respective Licensed Intellectual Property.
10.3 All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given when (a) delivered in person, (b)
deposited in the United States mail or private express mail, postage prepaid, or
(c) sent by facsimile (with a machine confirmation of receipt) addressed as
follows:
If to ISI, to: Inland Steel Industries, Inc.
30 West Monroe Street
Chicago, Illinois 60603
Facsimile: 312-899-3921
Attention: Vice President and General Counsel
If to Ryerson Tull, to: Ryerson Tull, Inc.
2621 West 15th Place
Chicago, Illinois 60608
Facsimile: 312-899-3214
Attention: Corporate Secretary
Any party may, by notice to the other party, change the address to which such
notices are to be given.
11. Governing Law.
This Agreement shall be construed in accordance with and governed by the
laws of the State of Illinois.
12. Complete Agreement.
This Agreement constitutes the complete agreement between the parties with
respect to the subject matter hereof and supersedes any and all previous
agreements, oral or written, that may have been made between the parties or
acquired by the parties. This Agreement may be amended only in writing by an
agreement executed by the parties hereto.
13. Severability.
If any provision of this Agreement or the application thereof to any Person
or circumstance is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof or thereof, or
the application of such provisions hereof or thereof, or the application of such
provision to Persons or circumstances or in jurisdictions other than those as to
which it has been held invalid or unenforceable, shall remain in full force and
effect and shall in no way be affected, impaired or invalidated thereby, so long
as the economic or legal substance of the transactions contemplated hereby or
thereby, as the case may be, is not affected in any manner adverse to any party.
Upon such determination, the parties shall negotiate in good faith in an effort
to agree upon such a suitable and equitable provision to effect the original
intent of the parties.
14. Amendments.
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No provisions of this Agreement shall be deemed waived, amended,
supplemented or modified by any party, unless such waiver, amendment, supplement
or modification is in writing and signed by the authorized representative of the
party against whom it is sought to enforce such waiver, amendment, supplement or
modification.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives.
INLAND STEEL INDUSTRIES, INC.
By: /s/ Vicki L. Avril
-------------------------------
Its: Treasurer
-------------------------------
RYERSON TULL, INC.
By: /s/ Jay M. Gratz
-------------------------------
Its: Vice President
-------------------------------
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SCHEDULE 1
Designated ISI Intellectual Property
------------------------------------
The red diamond logo of Inland Steel Industries, Inc.
<PAGE>
SCHEDULE 2
Designated Ryerson Tull Intellectual Property
---------------------------------------------
The name "Ryerson".
Know-how of Ryerson Tull, Inc., including technical assistance and
consultation regarding data processing systems, logistics, inventory and
material management, engineering and cost reduction services, material
processing and assembling and network integration.
<PAGE>
Exhibit 10.14
TAX SHARING AGREEMENT
This TAX SHARING AGREEMENT is made and entered into as of this 26th day of
June, 1996 by and among INLAND STEEL INDUSTRIES, INC. ("ISI") and RYERSON TULL,
INC. ("Ryerson Tull").
RECITALS:
--------
A. The Board of Directors of ISI has determined that it is in the
best interests of ISI and its stockholders for Ryerson Tull to issue and
sell in an initial public offering up to 15% of the common stock of Ryerson
Tull.
B. ISI and Ryerson Tull wish to provide for the proper treatment of
tax liability incurred by ISI and affiliates of ISI other than Ryerson
Tull, on one hand, and Ryerson Tull and its operating subsidiaries on the
other hand.
WITNESSETH:
----------
NOW, THEREFORE, for and in consideration of the foregoing recitals and the
mutual covenants set forth herein, the parties agree as follows:
1. Federal Income Taxes.
1.1. ISI and Ryerson Tull acknowledge that Financial Accounting Standards
Board statement on Accounting for Income Taxes ("FAS 109") governs the
requirements to account for and allocate current and deferred federal income tax
expense for a group that files a consolidated income tax return. Historically,
ISI has administered compliance with FAS 109 among ISI, Ryerson Tull, Inland
Steel Company, Joseph T. Ryerson & Son, Inc., J. M. Tull Metals Co., Inc., AFCO
Metals, Inc. Inland Steel Administrative Services Company, and Magnetics
International, Inc. (the "Consolidated Group").
1.2. Regular and Alternative Minimum Tax. ISI and Ryerson Tull agree to
follow the following procedures in connection with the determination and
allocation of regular and alternative minimum federal income tax liability.
1.2.1. Each member of the Consolidated Group, as such group is now or
hereafter constituted, shall determine its own regular income tax liability
based on its separate company taxable income. If the Consolidated Group
uses net operating loss ("NOL") carry forwards, each member will use the
appropriate portion of that year's carry forward previously allocated to
such member, if any.
1.2.2. If some members of the Consolidated Group have a regular
taxable income for the year but one or other members of the Consolidated
Group have a regular tax loss, the loss company(ies) will record an income
tax credit not to exceed the positive tax charges recorded by the
profitable members.
1.2.3. Each member of the Consolidated Group will determine its own
tentative minimum tax and alternative minimum tax ("AMT").
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1.2.4. If the Consolidated Group has an AMT liability for the year,
the consolidated AMT will be allocated to appropriate members of the
Consolidated Group based upon the analyis required in Paragraph 1.2.3.
1.2.5. Any consolidated NOL carry forwards or AMT credit carry
forwards generated during the year will be allocated to appropriate members
in the Consolidated Group.
1.2.6. If the Consolidated Group uses AMT credit carry forwards, each
member will use the appropriate portion of that year's carry forward
previously allocated to it, if any.
1.2.7. Each member will record as its current tax provision its
separate company regular income tax liability and its allocated AMT
liability as determined in accordance with Paragraphs 1.2.1. through 1.2.6.
1.3. Deferred Income Taxes.
Each member of the Consolidated Group will record the difference between
(1) its cumulative temporary differences at the end of the year multiplied by
the statutory tax rate and (2) its cumulative temporary differences at the
beginning of the current year multiplied by the statutory tax rate. Each member
of the Consolidated Group will also record the tax effects of increases or
decreases in NOL carry forwards and AMT credit carry forwards allocated to it in
accordance with the provisions of Paragraph 1.2.7 and increases or decreases in
other tax credit carry forwards allocated to it, if any. For purposes of this
Agreement, the term "temporary differences" shall have the meaning assigned to
such term in FAS 109.
1.4. Payment.
Each member of the Consolidated Group will pay its current provision for
the year to, or receive cash if its current provision is a credit from, ISI. If
the Consolidated Group is able to use carry forwards from a prior year that were
allocated to a specific member of the Consolidated Group, but such member was
not individually able to do so, then ISI will pay such member for the use of
such member's attributes. For purposes of this Agreement, each member's
"current provision" shall be the amount recorded as its "current provision" in
its applicable statement of operations contained within its financial
statements.
2. State and Local Income Taxes.
The following provisions shall govern the determination and allocation of
state and local income taxes for states that have unitary or combined tax laws
and for states where the liability is based solely on the results of the
individual company regardless of applicable consolidation principles.
2.1. Separate Company States. The current income tax liability for each
member of the state consolidated group will be determined on a stand-alone basis
in accordance with applicable state laws. No deferred taxes will be provided for
because they have been deemed to be immaterial in the states involved.
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2.2. Unitary or Combined Tax Laws (other than Indiana).
Each member of a state group will pay a charge to ISI in lieu of State
income tax in those years when such member has State Taxable income and ISI
incurs a unitary or combined State income tax liability. Such charge in lieu of
State income tax is to be determined based upon the proportion that each such
member's State taxable income bears to total taxable income for the appropriate
state group as a whole. For example, the quotient of the member's unitary or
combined state taxable income divided by the total sum of unitary or combined
taxable income times the state income tax liability equals the applicable charge
in lieu of state income tax.
2.3 Indiana Income Taxes.
Current and deferred Indiana income taxes will be provided for by each
member of the Indiana consolidated group which has a nexus in Indiana. The
method for determining and allocating Indiana state income taxes will be the
same methodology used to determine federal income taxes and will include the
determination of a current liability based on the consolidated apportionment
factors and the determination of a net deferred liability or asset based on
temporary differences and allocated tax attributes.
3. Adjustments
Audit adjustments and refunds will be charged or paid to Ryerson Tull in
accordance with the calculation of tax liability set forth in this Agreement.
4. Notices.
Any notice to be given hereunder by either party hereto to the other may be
transmitted by facsimile (with a machine confirmation of receipt), may be
personally delivered or may be deposited in the United States mail, registered
or certified, postage prepaid and return receipt requested, addressed to the
party for whom intended as follows:
To Ryerson Tull: Ryerson Tull, Inc.
2621 West 15th Place
Chicago, IL 60608
Attention: Vice President-Finance
Fax Number: (312) 762-0179
To ISI: Inland Steel Industries, Inc.
30 W. Monroe Street
Chicago, IL 60603
Attention: Director-Taxes
Fax Number: (312) 899-3544
Either party may change its address at any time by notifying the other, in
writing, of such change. Service of any such notice shall be deemed complete at
the time of delivery.
-3-
<PAGE>
5. Governing Law.
This Agreement has been delivered in, and shall in all respects be governed
by, and construed in accordance with, the laws of the State of Illinois
applicable to agreements made and to be performed entirely within such State,
including all matters of construction, validity and performance.
6. Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
INLAND STEEL INDUSTRIES, INC. RYERSON TULL, INC.
By: /s/ VICKI L. AVRIL By: /s/ JAY M. GRATZ
---------------------------- --------------------------------
Name: Vicki L. Avril Name: Jay M. Gratz
-------------------------- -------------------------------
Title: Treasurer Title: Vice President
------------------------- ------------------------------
-4-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED STATEMENT OF OPERATIONS, THE CONSOLIDATED BALANCE SHEET,
AND THE SUMMARY OF STOCKHOLDERS' EQUITY CONTAINED IN THE QUARTERLY
REPORT ON FORM 10-Q TO WHICH THIS EXHIBIT IS ATTACHED AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL SCHEDULES
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> JUN-30-1996
<CASH> 46,000
<SECURITIES> 0
<RECEIVABLES> 269,900
<ALLOWANCES> 6,100
<INVENTORY> 312,400
<CURRENT-ASSETS> 635,300
<PP&E> 479,400
<DEPRECIATION> 234,900
<TOTAL-ASSETS> 963,900
<CURRENT-LIABILITIES> 168,800
<BONDS> 14,700
<COMMON> 39,200
0
0
<OTHER-SE> 304,100
<TOTAL-LIABILITY-AND-EQUITY> 963,900
<SALES> 1,232,800
<TOTAL-REVENUES> 1,232,800
<CGS> 1,083,600
<TOTAL-COSTS> 1,083,600
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,700
<INCOME-PRETAX> 68,200
<INCOME-TAX> 26,900
<INCOME-CONTINUING> 41,300
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 41,300
<EPS-PRIMARY> 1.05
<EPS-DILUTED> 1.05
</TABLE>
