<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 23, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
ROCKWELL INTERNATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 25-1797617
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
------------------------
600 Anton Boulevard
Suite 700
Costa Mesa, California 92626-7147
(714) 424-4565
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
------------------------
<TABLE>
<S> <C>
WILLIAM J. CALISE, JR., ESQ. PETER R. KOLYER, ESQ.
Senior Vice President, Chadbourne & Parke LLP
General Counsel and Secretary 30 Rockefeller Plaza
Rockwell International Corporation New York, New York 10112
600 Anton Boulevard, Suite 700 (212) 408-5100
Costa Mesa, California 92626
(714) 424-4262
</TABLE>
(NAMES, ADDRESSES, INCLUDING ZIP CODE, AND TELEPHONE NUMBERS, INCLUDING AREA
CODE, OF AGENTS FOR SERVICE)
------------------------
Copy to:
MORTON A. PIERCE, ESQ.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
(212) 259-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
------------------------
IF THE ONLY SECURITIES BEING REGISTERED ON THIS FORM ARE BEING OFFERED PURSUANT
TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK THE FOLLOWING BOX. [ ]
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. [X]
IF THIS FORM IS FILED TO REGISTER ADDITIONAL SECURITIES FOR AN OFFERING PURSUANT
TO RULE 462(b) UNDER THE SECURITIES ACT, PLEASE CHECK THE FOLLOWING BOX AND LIST
THE SECURITIES ACT REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE
REGISTRATION STATEMENT FOR THE SAME OFFERING. [ ]
IF THIS FORM IS A POST-EFFECTIVE AMENDMENT FILED PURSUANT TO RULE 462(c) UNDER
THE SECURITIES ACT, CHECK THE FOLLOWING BOX AND LIST THE SECURITIES ACT
REGISTRATION STATEMENT NUMBER OF THE EARLIER EFFECTIVE REGISTRATION STATEMENT
FOR THE SAME OFFERING. [ ]
IF DELIVERY OF THE PROSPECTUS IS EXPECTED TO BE MADE PURSUANT TO RULE 434,
PLEASE CHECK THE FOLLOWING BOX. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities................. $1,000,000,000(2) 100% $1,000,000,000 $295,000
- ----------------------------------------------------------------------------------------------------------
Common Stock, par value $1 per
share (including the
associated Preferred Share
Purchase Rights).............. (3) -- -- --
==========================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the Registration Fee pursuant
to paragraph (o) of Securities Act Rule 457.
(2) If any such Debt Securities are issued (i) at an original issue discount,
such greater amount as shall result in aggregate net proceeds not in excess
of $1,000,000,000 to the Registrant or (ii) with a principal amount
denominated in a foreign currency or composite currency, such amount as
shall result in an aggregate principal amount equivalent to $1,000,000,000
at the time of initial offering.
(3) Such indeterminate number of shares of Common Stock of Registrant and
associated Preferred Share Purchase Rights, if any, (i) as shall be issuable
or deliverable upon conversion of any Debt Securities registered hereby
which are convertible into such Common Stock and (ii) as may be required for
delivery upon conversion of any such convertible Debt Securities as a result
of anti-dilution provisions thereof.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 23, 1997
PROSPECTUS
ROCKWELL INTERNATIONAL CORPORATION
DEBT SECURITIES
------------------------
Rockwell International Corporation, a Delaware corporation (the Company),
intends to offer from time to time its debt securities of one or more series
(the Debt Securities) in an aggregate principal amount (or net proceeds, in the
case of Debt Securities issued at an original issue discount) of up to
$1,000,000,000 or the equivalent thereof in one or more foreign or composite
currencies, on terms to be determined at the time of sale. The Debt Securities
may be issued as convertible Debt Securities which, unless previously redeemed,
repaid or otherwise purchased or acquired, will be convertible, at any time
during a specified conversion period, into shares of Common Stock, par value $1
per share (the Common Stock), of the Company. The specific designation,
aggregate principal amount, authorized denominations, purchase price, maturity,
rate (or manner of calculation thereof) and time of payment of any interest, any
redemption terms, any conversion terms, the currency or composite currency in
which the Debt Securities or any interest thereon shall be payable or other
specific terms and any listing on a securities exchange of the series of Debt
Securities in respect of which this Prospectus is being delivered (the Offered
Debt Securities) are set forth in the accompanying Prospectus Supplement,
together with the terms of offering of the Offered Debt Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The Debt Securities will be sold directly, through agents designated from
time to time or through underwriters or dealers. See "Plan of Distribution". If
any agents of the Company or any underwriters are involved in the sale of the
Offered Debt Securities in respect of which this Prospectus is being delivered,
the names of such agents or underwriters and any applicable commissions or
discounts are set forth in the Prospectus Supplement. The net proceeds to the
Company from such sale are also set forth in the Prospectus Supplement.
------------------------
THE DATE OF THIS PROSPECTUS IS , 199 .
<PAGE> 3
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which are on file (File No. 1-12383) with the
Securities and Exchange Commission (the Commission), are incorporated herein by
reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997;
(b) The Company's Current Report on Form 8-K dated October 10, 1997;
and
(c) The description of the Common Stock and the Company's Preferred
Share Purchase Rights (the Rights) which is incorporated in the Company's
Registration Statement on Form 8-A dated October 30, 1996 by reference to
the material under the caption "Description of New Rockwell Capital Stock"
on pages 105-115 of the Company's Proxy Statement-Prospectus dated October
29, 1996 constituting a part of the Company's Registration Statement on
Form S-4 (Registration No. 333-14969).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Debt Securities hereunder shall be deemed to be incorporated
herein by reference and shall be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes that statement. Any such
statement so modified or superseded shall not constitute a part of this
Prospectus, except as so modified or superseded.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, on the written
or oral request of such person, a copy of any or all of the information
incorporated by reference in the Registration Statement of which this Prospectus
is a part (not including exhibits to such information unless such exhibits are
specifically incorporated by reference into such information). Such request
should be directed to Mr. A. Lee Shull, Jr., Vice President, Investor Relations,
Rockwell International Corporation, 625 Liberty Avenue, Pittsburgh, Pennsylvania
15222-3123 (telephone number (412) 565-7436).
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange
Act, and in accordance therewith files reports, proxy statements and other
information relating to its business, financial condition and other matters with
the Commission. This Prospectus contains information concerning the Company but
does not contain all of the information set forth in the Registration Statement
of which this Prospectus is a part and exhibits thereto, or amendments thereto,
which the Company has filed or may file with the Commission under the Securities
Act of 1933, as amended (the Securities Act). Such reports, proxy statements,
Registration Statement and exhibits and other information filed by the Company
can be inspected and copied at the public reference facilities of the Commission
at the Commission's office at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following Regional Offices of the Commission: 7 World Trade Center,
Suite 1300, New York, New York 10048; and Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material may
also be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
also maintains a World Wide Web site that contains reports, proxy and
information statements and other information regarding registrants (including
the Company) that file electronically with the Commission (http://www.sec.gov).
The Common Stock is listed on the New York and Pacific Stock Exchanges.
Reports, proxy statements and other information concerning the Company can be
inspected at such exchanges.
------------------------
2
<PAGE> 4
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES.
SPECIFICALLY, UNDERWRITERS MAY OVER-ALLOT IN CONNECTION WITH THE OFFERING, AND
MAY BID FOR, AND PURCHASE, DEBT SECURITIES IN THE OPEN MARKET. FOR A DESCRIPTION
OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION".
THE COMPANY
The Company is a global electronics company with leadership positions in
automation, avionics and communications and semiconductor systems. The Company
was incorporated in 1996 and is the successor to the former Rockwell
International Corporation as the result of a tax-free reorganization completed
on December 6, 1996, pursuant to which the Company divested its former Aerospace
and Defense businesses to The Boeing Company. The predecessor corporation was
incorporated in 1928. On September 30, 1997, the Company completed the spin-off
of its automotive component systems business into an independent, separately
traded, publicly held company named Meritor Automotive, Inc. As used herein the
term "the Company" includes subsidiaries and predecessors unless the context
indicates otherwise.
The Company's business segments are engaged in research, development and
manufacture of electronics products as follows:
Automation -- industrial automation equipment and systems, including control
logic, sensors, human-machine interface devices, motors, power and
mechanical devices and software products.
Avionics & Communications -- avionics products and systems and related
communications technologies primarily used in commercial and military
aircraft and defense electronic systems for command, control, communications
and intelligence.
Semiconductor Systems -- system-level semiconductor chipset solutions for
personal communications electronics markets such as personal computers,
personal imaging devices, wireless communications products, network access
devices and digital information and entertainment products, as well as
electronic commerce products for call center systems and personalized
electronic commerce applications.
The Company has its principal executive offices at 600 Anton Boulevard,
Suite 700, Costa Mesa, California 92626-7147 (telephone number (714) 424-4565).
USE OF PROCEEDS
Except as may otherwise be set forth in the Prospectus Supplement, the net
proceeds to be received by the Company from the sale of the Debt Securities
offered hereby will be added to the Company's general funds which will be
available for general corporate purposes. Pending application of the funds, the
Company will use the net proceeds of the Debt Securities for short-term
investments.
3
<PAGE> 5
SELECTED FINANCIAL INFORMATION
The following selected consolidated financial data in respect of the
Company's continuing operations have been excerpted or derived from, and should
be read in conjunction with, the consolidated financial statements and other
information and data contained in the Company's Annual Report on Form 10-K for
the fiscal year ended September 30, 1997.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
--------------------------------------------------
1997 1996 1995 1994 1993
------ ------ ------ ------ ------
(IN MILLIONS, EXCEPT PER SHARE AND RATIO AMOUNTS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales:
Automation.................................. $4,494 $4,165 $3,590 $2,085 $1,716
Avionics & Communications................... 1,689 1,470 1,461 1,409 1,396
Semiconductor Systems....................... 1,579 1,593 875 691 530
Divested business(1)........................ -- -- 11 8 15
------ ------ ------ ------ ------
Total............................... $7,762 $7,228 $5,937 $4,193 $3,657
====== ====== ====== ====== ======
Operating earnings:
Automation.................................. $ 598 $ 537 $ 481 $ 265 $ 193
Avionics & Communications................... 253 166 182 183 220
Semiconductor Systems....................... 231 330 113 98 57
Purchased research and development(2)....... (53) (121) -- -- --
Restructuring charge(3)..................... -- (76) -- -- --
Divested business(1)........................ -- -- (31) (9) (4)
------ ------ ------ ------ ------
Total............................... $1,029 $ 836 $ 745 $ 537 $ 466
====== ====== ====== ====== ======
Interest expense.............................. $ 27 $ 22 $ 14 $ 5 $ 5
====== ====== ====== ====== ======
Income from continuing operations(4).......... $ 586 $ 451 $ 368 $ 285 $ 240
====== ====== ====== ====== ======
Earnings per share from continuing
operations(4)............................... $ 2.74 $ 2.07 $ 1.69 $ 1.29 $ 1.09
====== ====== ====== ====== ======
Cash dividends per share...................... $ 1.16 $ 1.16 $ 1.08 $ 1.02 $ 0.96
====== ====== ====== ====== ======
Average Outstanding Shares.................... 213.8 217.6 217.2 220.5 219.8
====== ====== ====== ====== ======
BALANCE SHEET DATA: (at end of period)
Working Capital............................. $1,714 $1,474 $1,426 $2,232 $2,080
Total Assets................................ 7,971 8,976 8,160 5,539 5,310
Long-Term Debt.............................. 156 156 167 17 11
Shareowners' Equity......................... 4,811 4,256 3,782 3,356 2,956
RATIO OF EARNINGS TO FIXED CHARGES(5)......... 11.1 9.8 10.3 11.3 10.0
</TABLE>
- ---------------
(1) The divested business is the Semiconductor Systems Local Area Networking
product line.
(2) In 1997, purchased research and development of $30 million and $23 million
relates to the acquisition of a Semiconductor Systems business and the
remaining interest in an Automation software business, respectively. In
1996, purchased research and development relates to the acquisition of a
Semiconductor Systems business.
(3) The 1996 restructuring charge relates to the business segments as follows:
Automation, $11 million; Avionics & Communications, $50 million; and
Corporate, $15 million.
(4) Includes special charges of $42 million, or 20 cents per share, in 1997 and
$121 million, or 56 cents per share, in 1996 relating to the write-off of
purchased research and development in connection with acquisitions.
(5) In computing the ratio of earnings to fixed charges, earnings are defined as
income from continuing operations before income taxes, adjusted for minority
interest income or loss of subsidiaries, undistributed earnings of
affiliates, and fixed charges exclusive of capitalized interest. Fixed
charges consist of interest on borrowings and that portion of rentals deemed
representative of the interest factor.
4
<PAGE> 6
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of purchasers or to a
single purchaser; or (iii) through agents. The Prospectus Supplement with
respect to the Offered Debt Securities sets forth the terms of the offering of
the Offered Debt Securities, including the name or names of any underwriters and
the respective amounts of the Offered Debt Securities underwritten or purchased
by each of them, the purchase price of the Offered Debt Securities and the
proceeds to the Company from such sale, any discounts, commissions or other
items constituting compensation from the Company, any initial public offering
price and any discounts, commissions or concessions allowed or reallowed or paid
to dealers and any securities exchanges on which the Offered Debt Securities may
be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The Debt
Securities may be either offered to the public through underwriting syndicates
represented by managing underwriters, or directly by underwriters. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Offered Debt Securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all the
Offered Debt Securities if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
In connection with an offering of Debt Securities, underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of the
Debt Securities. Specifically, underwriters may over-allot in connection with
the offering, creating a syndicate short position. In addition, underwriters may
bid for, and purchase, Debt Securities in the open market to cover syndicate
short positions or to stabilize the price of the Debt Securities. The
underwriting syndicate may also reclaim selling concessions allowed for
distributing the Debt Securities in the offering if the syndicate repurchases
previously distributed Debt Securities in syndicate covering transactions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the Debt Securities above independent market
levels. Underwriters are not required to engage in these activities, and may end
any of these activities at any time.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Offered Debt Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain purchasers to
purchase Offered Debt Securities from the Company at the public offering price
set forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such contracts and the date or dates in the future for
delivery of the Offered Debt Securities pursuant to such contracts.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may be customers of, engage in transactions
with, or perform services for the Company in the ordinary course of business.
5
<PAGE> 7
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the Indenture)
dated as of December 1, 1996 between the Company and The Chase Manhattan Bank
(successor to Mellon Bank, N.A.), as trustee (the Trustee). Copies of the
Indenture may be obtained from the Commission in the manner set forth above
under "Available Information". Certain provisions of the Indenture are
summarized below. Such summaries are subject to, and are qualified by reference
to, all provisions of the Indenture, including the definitions therein of
certain terms. Numerical references in parentheses below are to sections of the
Indenture. Whenever particular provisions or sections of the Indenture or terms
defined therein are referred to herein, such provisions, sections or definitions
are incorporated by reference as a part of the statements made, and the
statements are qualified by such reference. Unless otherwise indicated,
capitalized terms used herein that are defined in the Indenture shall have the
meanings ascribed to such terms in the Indenture.
The description below sets forth certain general terms and provisions of
the Debt Securities. The specific terms of the Offered Debt Securities, as well
as any modifications of or additions to the general terms of the Debt Securities
set forth below that may be applicable in the case of the Offered Debt
Securities, are described in the Prospectus Supplement. Accordingly, for a
description of the terms of the Offered Debt Securities, reference must be made
to both the Prospectus Supplement and the description of the Debt Securities set
forth in this Prospectus.
GENERAL
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued thereunder up
to the aggregate principal amount which may be authorized from time to time by
the Company in one or more series. Under the Indenture, the Company has the
ability to issue Debt Securities with terms different from those of Debt
Securities previously issued thereunder, and without the consent of the holders
thereof, to issue additional amounts of a series of Debt Securities (with
different dates for payments, different rates of interest and in a different
Currency or Currencies). Reference is made to the Prospectus Supplement for the
following terms of the Offered Debt Securities, as applicable: (1) the title of
the Offered Debt Securities; (2) any limit on the aggregate principal amount of
the Offered Debt Securities and any limit on the aggregate principal amount of
Debt Securities of such series; (3) if other than Dollars, the Currency or
Currencies in which the Offered Debt Securities are to be denominated, the
manner in which the Dollar equivalent of the principal amount is to be
determined upon original issuance and if any payment of principal of (or
premium, if any) or interest, if any, on or any other amount in respect of the
Offered Debt Securities will be payable other than in Dollars, the Currency or
Currencies in which such payment shall be payable; (4) the date or dates, or the
method by which such date or dates will be determined or extended, on which the
principal of (and premium, if any, on) the Offered Debt Securities will be
payable; (5) the rate or rates, or the method of determination thereof, at which
the Offered Debt Securities shall bear interest, if any, the date or dates from
which such interest shall accrue or the method by which such date or dates shall
be determined, the date or dates on which such interest shall be payable and for
any Registered Securities the Regular Record Dates, if any, for such interest
payment dates, or the method by which such date or dates shall be determined,
and the basis on which any interest shall be calculated if other than on the
basis of a 360-day year of twelve 30-day months; (6) the place or places where
principal of (and premium, if any) and interest, if any, on the Offered Debt
Securities may be payable, where any Registered Securities may be surrendered
for registration of transfer and where Offered Debt Securities may be exchanged
and notices and demands may be served or published; (7) the period or periods
within which, the price or prices at which, the Foreign Currency or Foreign
Currencies, if any, in which and the other terms and conditions upon which the
Offered Debt Securities may be redeemed, in whole or in part, at the option of
the Company; (8) the obligation, if any, of the Company to redeem or purchase
the Offered Debt Securities 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, the Foreign Currency or Foreign Currencies, if any, in
which, and the other terms and conditions upon which Offered Debt Securities
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation; (9) the denomination of any Registered Security (if other than
$1,000 or any integral
6
<PAGE> 8
multiple thereof) and of any Bearer Security (if other than $10,000 or any
integral multiple thereof); (10) the portion of the principal amount of the
Offered Debt Securities, if other than the principal amount thereof, payable
upon acceleration of Maturity thereof or the method by which such portion shall
be determined; (11) whether Offered Debt Securities are to be Registered
Securities, Bearer Securities or both, are to be issuable with or without
coupons or both, and the terms upon which Bearer Securities may be exchanged for
Registered Securities, if other than in the manner provided in the Indenture,
and, in the case of Bearer Securities, the date as of which such Bearer
Securities shall be dated (if other than the date of original issuance of the
first security of like tenor and term to be issued); (12) whether Offered Debt
Securities are to be issued in whole or in part in the form of a Global
Security, and in such case the Depositary, whether such global form is temporary
or permanent, whether beneficial owners of interests in any Permanent Global
Security may exchange such interests for Debt Securities of such series in
certificated form and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other than in the
manner provided in the Indenture, and any applicable Exchange Date; (13) whether
any additional amounts will be payable by the Company on the Offered Debt
Securities in respect of any tax, assessment or governmental charge and, if so,
whether the Company will have the option to redeem the Offered Debt Securities
rather than pay such additional amounts (and the terms and conditions of any
such option); (14) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Offered Debt Securities may be determined with
reference to an index, the manner in which such amounts shall be determined;
(15) the person to whom any interest on any Registered Security shall be
payable, if other than the person in whose name such Registered Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date, the manner in which, or person to whom, any interest on any
Bearer Security will be payable, if other than upon presentation and surrender
of the coupons appertaining thereto as they mature, and the extent to which any
interest payable on an Interest Payment Date on any temporary Global Security
will be paid if other than in the manner provided in the Indenture; (16) any
Events of Default or covenants applicable to the Offered Debt Securities if
other than as set forth in the Indenture; (17) the application, if any, of the
defeasance or covenant defeasance provisions of the Indenture to the Offered
Debt Securities; (18) the designation of the initial Exchange Rate Agent, if
applicable; (19) the terms and conditions upon which the Offered Debt Securities
will be convertible into or exchangeable for Common Stock, if applicable; (20)
if other than the Trustee, the identity of the trustee, Authenticating Agent,
Security Registrar and/or Paying Agent; and (21) any other terms of the Offered
Debt Securities. (Section 3.01).
Additional provisions of the Indenture, such as interest rate reset and
extension provisions, may be made applicable to the Offered Debt Securities, as
described in the Prospectus Supplement.
If any series of Debt Securities is sold for, is payable in or is
denominated in one or more Foreign Currencies, applicable restrictions,
elections, tax consequences, specific terms and other information with respect
to such series of Debt Securities and such Foreign Currency or Foreign
Currencies shall be set forth in the Prospectus Supplement relating thereto.
If the Debt Securities are being issued as original issue discount
securities (bearing no interest or interest at a rate which at the time of
issuance is below market rates) to be sold at a substantial discount below the
stated principal amount, the United States federal income tax consequences and
other considerations applicable to such original issue discount securities will
be described in the Prospectus Supplement relating thereto.
The Debt Securities will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company, unless otherwise
indicated in the applicable Prospectus Supplement. Other than the protections
which may otherwise be afforded holders of Debt Securities as a result of the
operation of the covenants described under "Covenants" below or as may be made
applicable to the Offered Debt Securities as described in the Prospectus
Supplement, there are no covenants or other provisions which may afford holders
of Debt Securities protection in the event of a leveraged buyout or other highly
leveraged transaction involving the Company or any similar occurrence.
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FORM, DENOMINATIONS, REGISTRATION, TRANSFER AND EXCHANGE
Debt Securities of a series may be issuable solely as Registered
Securities, solely as Bearer Securities or as both Registered Securities and
Bearer Securities. Unless otherwise provided in the applicable Prospectus
Supplement, Registered Securities denominated in Dollars (other than Registered
Securities in global form, which may be in any denomination) are issuable in
denominations of $1,000 and any integral multiple thereof and Bearer Securities
denominated in Dollars (other than Bearer Securities in global form, which may
be in any denomination) are issuable in denominations of $10,000 and any
integral multiple thereof. The Indenture provides that Debt Securities of a
series may be issuable in global form. See "Global Securities" below. Unless
otherwise indicated in the applicable Prospectus Supplement, Bearer Securities
(other than Global Securities) will have interest coupons attached. (Sections
2.01 and 3.02).
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations, of
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the holder, but subject to applicable laws, upon
request confirmed in writing and subject to the terms of the Indenture, Bearer
Securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable into Registered
Securities of the same series of any authorized denominations and of like
aggregate principal amount, tenor and terms. Bearer Securities surrendered in
exchange for Registered Securities of the same series between the close of
business on a Regular Record Date or a Special Record Date and the relevant date
for payment of interest shall be surrendered without the coupon relating to such
date for payment of interest, and interest will not be payable in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the holder of such coupon when due in accordance with the terms
of the Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, Bearer Securities will not otherwise be issued in exchange for
Registered Securities. (Section 3.05).
In connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States (as defined
below under "Limitations on Issuance of Bearer Securities") and, unless
otherwise specified in the applicable Prospectus Supplement, a Bearer Security
may be delivered in connection with its original issuance only if the person
entitled to receive such Bearer Security furnishes written certification, in the
form required by the Indenture.
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Company for such purpose with respect to such series of Debt
Securities, without service charge and upon payment of any taxes and other
governmental charges. (Section 3.05). If the Prospectus Supplement refers to any
transfer agent (in addition to the Security Registrar) initially designated by
the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent (or Security Registrar)
acts, except that, if Debt Securities of a series are issuable as Registered
Securities, the Company will be required to maintain a transfer agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (in
addition to the Security Registrar) a transfer agent in a Place of Payment for
such series located outside the United States. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 10.02).
In the event of any redemption, the Company shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period of 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any
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Registered Security being redeemed in part; or (iii) exchange any Bearer
Security selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of like tenor and terms of that series,
provided that such Registered Security shall be simultaneously surrendered for
redemption. (Section 3.05).
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary identified in the Prospectus Supplement relating to such series
and registered in the name of the Depositary or the Depositary's nominee. Global
Securities may be issued in fully registered or bearer form and may be issued in
either temporary or permanent form.
The Company anticipates that the following provisions will generally apply
to depository arrangements. The specific terms of the depository arrangement
with respect to a series of Debt Securities and whether all or any part of
Offered Debt Securities will be issued in the form of one or more Global
Securities will be described in the Prospectus Supplement relating to such
series.
Unless and until it is exchanged in whole or in part for the individual
Debt Securities represented thereby, a Global Security may not be transferred
except as a whole between the Depositary for such Global Security and its
nominee or by the Depositary or any nominee to a successor of the Depositary or
a nominee of such successor.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depositary (Participants). Such accounts shall be designated
by the underwriters, dealers or agents with respect to such Debt Securities or
by the Company if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in a Global Security will be limited
to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the applicable Depositary or its nominee (with respect to interests of
Participants) and records of Participants (with respect to interests of persons
who hold through Participants). The laws of some states require that certain
purchasers of securities take physical delivery of securities in definitive
form. Such limits and such laws may impair the ability to own, pledge or
transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security or its nominee is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have any of the individual Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payments of principal of (and premium, if any) and interest, if any, on
individual Debt Securities represented by a Global Security registered in the
name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. None of the Company, the Trustee, any Paying
Agent or the Security Registrar for such Debt Securities or any agent,
underwriter or dealer through which such Debt Securities are offered or sold
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal (or premium, if any) or
interest, if any, in respect of a permanent Global Security representing any of
such Debt Securities, immediately will credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security
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for such Debt Securities as shown on the records of such Depositary or its
nominee. The Company also expects that payments by Participants to owners of
beneficial interests in such Global Security held through such Participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name". Such payments will be the responsibility of such Participants.
If a Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual Debt
Securities of such series to Participants in exchange for the Global Security
representing such series of Debt Securities. In addition, the Company may, at
any time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any Debt Securities of such series represented by one or more Global Securities
and, in such event, will issue individual Debt Securities of such series to
Participants in exchange for the Global Security or Securities representing such
series of Debt Securities. (Section 3.05).
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
Unless otherwise provided in the applicable Prospectus Supplement, in
compliance with United States federal tax laws and regulations, Bearer
Securities (including Debt Securities in global form) may not be offered, sold,
resold or delivered in connection with their original issuance in the United
States or to United States persons (each as defined below) other than to a
Qualifying Branch of a United States Financial Institution (as defined below) or
a United States person acquiring Bearer Securities through a Qualifying Branch
of a United States Financial Institution and any underwriters, agents and
dealers participating in the offering of Debt Securities must agree that they
will not offer any Bearer Securities for sale or resale in the United States or
to United States persons (other than a Qualifying Branch of a United States
Financial Institution or a United States person acquiring Bearer Securities
through a Qualifying Branch of a United States Financial Institution) or deliver
Bearer Securities within the United States. In addition, any such underwriters,
agents and dealers must agree to send confirmations to each purchaser of a
Bearer Security confirming that such purchaser represents that it is not a
United States person or is a Qualifying Branch of a United States Financial
Institution and, if such person is a dealer, that it will send similar
confirmations to purchasers from it. The term "Qualifying Branch of a United
States Financial Institution" means a branch located outside the United States
of a United States securities clearing organization, bank or other financial
institution listed under Treasury Regulation Section 1.165-12(c)(1)(v) that
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended (the Code), and the
regulations thereunder.
Bearer Securities and any coupons appertaining thereto will bear a legend
substantially to the following effect: "Any United States person who holds this
obligation will be subject to limitations under the United States income tax
laws, including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code." Under Sections 165(j) and 1287(a) of the Code, holders
that are United States persons, with certain exceptions, will not be entitled to
deduct any loss on Bearer Securities and must treat as ordinary income any gain
realized on the sale or other disposition (including the receipt of principal)
of Bearer Securities.
The term "United States person" means a citizen or resident of the United
States, a corporation, partnership or other entity created or organized in or
under the laws of the United States or of any political subdivision thereof, and
an estate or trust the income of which is subject to United States federal
income taxation regardless of its source, and the term "United States" means the
United States of America (including the states and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the applicable Prospectus Supplement, the
Place of Payment for a series of Debt Securities issuable solely as Registered
Securities will be New York, New York and the Company has
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initially designated an office of the Trustee for this purpose. Notwithstanding
the foregoing, at the option of the Company, interest, if any, may be paid on
Registered Securities by (i) check mailed to the address of the person entitled
thereto as such person's address appears in the Security Register or (ii)
transfer to an account located in the United States maintained by the person
entitled thereto as specified in the Security Register. (Sections 3.07, 10.01
and 10.02). Unless otherwise provided in the applicable Prospectus Supplement,
payment of any installment of interest on Registered Securities will be made to
the person in whose name such Registered Security is registered at the close of
business on the Regular Record Date for such interest payment. (Section 3.07).
If Debt Securities of a series are issuable as Bearer Securities, unless
otherwise provided in the applicable Prospectus Supplement, the Company will be
required to maintain an office or agency outside the United States at which,
subject to any applicable laws and regulations, the principal of (and premium,
if any) and interest, if any, on such series will be payable; provided that, if
required in connection with any listing of such Debt Securities on The Stock
Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States, the
Company will maintain an office or agency for such Debt Securities in London or
Luxembourg or any city located outside the United States required by such stock
exchange. (Section 10.02). The initial locations of such offices and agencies
will be specified in the applicable Prospectus Supplement. Unless otherwise
provided in the applicable Prospectus Supplement, payment of principal of (and
premium, if any) and interest, if any, on Bearer Securities may be made, at the
holder's option, by (i) check in the Currency designated by the Bearer Security
presented or mailed to an address outside the United States or (ii) transfer to
an account in such Currency maintained by the person entitled thereto with a
bank located outside the United States. (Sections 3.07 and 10.02). Unless
otherwise provided in the applicable Prospectus Supplement, payment of
installments of interest on any Bearer Securities on or before Maturity will be
made only against surrender of coupons for such interest installments as they
severally mature. (Section 10.01). Unless otherwise provided in the applicable
Prospectus Supplement, no payment with respect to any Bearer Security will be
made at any office or agency of the Company in the United States or by check
mailed to an address in the United States or by transfer to an account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal of (and premium, if any) and interest, if any,
on Bearer Securities payable in Dollars may be made at an office of the
Company's Paying Agent in the United States if (but only if) payment of the full
amount thereof in Dollars at all offices outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions and the
Trustee has received an Opinion of Counsel that such payment within the United
States is legal. (Sections 3.07 and 10.02).
The Company may from time to time designate additional offices or agencies
for payment with respect to any Debt Securities, approve a change in the
location of any such office or agency and, except as provided above, rescind the
designation of any such office or agency.
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest, if any, on any Debt
Security that is payable in a Currency other than Dollars will be made in
Dollars in the event that such Currency (i) ceases to be used both by the
government of the country that issued the Currency and by a central bank or
other public institution of or within the international banking community for
the settlement of transactions, (ii) is the ECU and ceases to be used both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) is any
Currency unit (or composite Currency) other than the ECU and ceases to be used
for the purposes for which it was established. (Section 3.10).
All moneys deposited with the Trustee or any Paying Agent or held for the
payment of principal of (or premium, if any) or interest, if any, on any Debt
Security or any coupon appertaining thereto that remains unclaimed at the end of
two years after such principal, premium or interest shall have become due and
payable will, at the request of the Company, be repaid to the Company and the
holder of such Debt Security or any coupon appertaining thereto will thereafter
look only to the Company for payment thereof. (Section 10.03).
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CONVERTIBLE DEBT SECURITIES
The terms and conditions upon which any convertible Debt Securities of a
series may be converted into shares of Common Stock, including the initial
conversion price or rate and the conversion period, and other provisions
applicable thereto, will be set forth in the Prospectus Supplement relating
thereto. See "Description of Capital Stock".
CERTAIN DEFINITIONS
"Restricted Subsidiary" means any Subsidiary of the Company other than an
Unrestricted Subsidiary. "Unrestricted Subsidiary" means any Subsidiary
designated as such from time to time by the Company. (Section 1.01). Subject to
various limitations, the Company may from time to time designate any Restricted
Subsidiary as an Unrestricted Subsidiary and any Unrestricted Subsidiary as a
Restricted Subsidiary. (Section 10.07). Unrestricted Subsidiaries will not be
restricted by the various provisions of the Indenture applicable to Restricted
Subsidiaries, and the debt of Unrestricted Subsidiaries will not be consolidated
with that of the Company and its Restricted Subsidiaries in calculating
Consolidated Funded Debt under the Indenture.
"Secured Debt" means indebtedness for money borrowed (other than
indebtedness among the Company and Restricted Subsidiaries), which is secured by
a mortgage or other lien on any Principal Property of the Company or a
Restricted Subsidiary or a pledge, lien or other security interest on the stock
or indebtedness of a Restricted Subsidiary. (Section 1.01).
"Funded Debt" means (a) indebtedness for money borrowed having a maturity
of more than 12 months, (b) certain obligations in respect of lease rentals and
(c) the higher of the par value or liquidation value of preferred stock of a
Restricted Subsidiary that is not owned by the Company or a Wholly-owned
Restricted Subsidiary, but, in the case of the Company, does not include certain
debt subordinate to the Debt Securities. (Section 1.01).
"Principal Property" includes any real property (including buildings and
other improvements) of the Company or any Restricted Subsidiary, owned at the
date of the Indenture or thereafter acquired (other than any pollution control
facility, cogeneration facility or small power production facility acquired
after the date of the Indenture), which (i) has a book value in excess of 5% of
Shareowners' Equity and (ii) in the opinion of the Board of Directors is of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as a whole. (Section 1.01).
"Sale and Lease-Back Transaction" means, subject to certain exceptions,
sales or transfers of any Principal Property owned by the Company or any
Restricted Subsidiary which has been in full operation for more than 180 days
prior to such sale or transfer, where the Company or such Restricted Subsidiary
has the intention of leasing back such property for more than 36 months but
discontinuing the use of such property on or before the expiration of the term
of such lease. (Section 10.06).
"Shareowners' Equity" means, at any date of computation, the aggregate of
capital stock, capital surplus and earned surplus, after deducting the cost of
shares of capital stock of the Company held in its treasury, of the Company and
its Restricted Subsidiaries, as consolidated and determined in accordance with
generally accepted accounting principles. (Section 1.01).
COVENANTS
Limitations on Liens. The Company and its Restricted Subsidiaries are
prohibited from creating, incurring, assuming or suffering to exist any Secured
Debt without equally and ratably securing the outstanding Debt Securities. The
foregoing restrictions are not applicable to (i) Secured Debt existing at the
date of the Indenture; (ii) liens on property acquired or constructed after the
date of the Indenture by the Company or a Restricted Subsidiary and created
contemporaneously with, or within twelve months after, such acquisition or the
completion of such construction to secure all or any part of the purchase price
of such property or the cost of such construction; (iii) mortgages on property
of the Company or a Restricted Subsidiary created within twelve months of
completion of construction of a new plant or plants on such property to secure
all or part of the cost of such construction; (iv) liens on property existing at
the time such
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property is acquired; (v) liens on stock acquired after the date of the
Indenture by the Company or a Restricted Subsidiary if the aggregate cost
thereof does not exceed 10% of Shareowner's Equity; (vi) liens securing
indebtedness of a successor corporation to the Company to the extent permitted
by the Indenture; (vii) liens securing indebtedness of a Restricted Subsidiary
outstanding at the time it became a Restricted Subsidiary; (viii) liens securing
indebtedness of any person outstanding at the time it is merged with or
substantially all its properties are acquired by the Company or any Restricted
Subsidiary; (ix) liens on property or on the outstanding shares or indebtedness
of a corporation existing at the time such corporation becomes a Restricted
Subsidiary; (x) liens created, incurred or assumed in connection with an
industrial revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and any Federal, state or
municipal government or other governmental body or agency; (xi) extensions,
renewals or replacements of the foregoing permitted liens to the extent of the
original amounts thereof; (xii) liens in connection with government and certain
other contracts; (xiii) certain liens in connection with taxes or legal
proceedings; (xiv) certain other liens not related to the borrowing of money;
and (xv) liens in connection with Sale and Lease-Back Transactions as described
under "Limitations on Sale and Lease-Back". (Section 10.05).
In addition, the Company and its Restricted Subsidiaries may have Secured
Debt not otherwise permitted without equally and ratably securing the
outstanding Debt Securities if the sum of (a) the amount of such Secured Debt
plus (b) the aggregate value of Sale and Lease-Back Transactions (subject to
certain exceptions) described below, does not exceed 10% of Shareowners' Equity.
(Section 10.05).
Limitations on Sale and Lease-Back. Sale and Lease-Back Transactions are
prohibited unless (a) the Company or its Restricted Subsidiaries would be
entitled to incur Secured Debt equal to the amount realizable upon such sale or
transfer secured by a mortgage on the property to be leased without equally and
ratably securing the outstanding Debt Securities; or (b) an amount equal to the
greater of net proceeds of the sale or fair value of the property sold as
determined by the Board of Directors is applied within 180 days of any such
transaction (i) to the retirement of Consolidated Funded Debt or indebtedness of
the Company or a Restricted Subsidiary that was Funded Debt at the time it was
created or (ii) to the purchase of other Principal Property having a value at
least equal to the greater of such amounts; or (c) the Sale and Lease-Back
Transaction involved was an industrial revenue bond, pollution control bond or
similar financing arrangement between the Company or any Restricted Subsidiary
and any Federal, state, municipal government or other governmental body or
agency. (Section 10.06).
Certain Limitations on Merger of the Company. The Company may consolidate
with or merge into any other corporation, or convey or transfer its properties
and assets substantially as an entirety to any other Person, provided certain
specified conditions are met. (Sections 8.01 and 8.02). If, upon any merger or
consolidation of the Company with or into any other corporation or upon any
conveyance or transfer of its properties and assets substantially as an entirety
to any other Person, any Principal Property of the Company or a Restricted
Subsidiary would thereupon become subject to any mortgage, security interest,
pledge, lien or encumbrance not otherwise permitted under the Indenture, the
Company will, prior to such transaction, secure the outstanding Debt Securities,
equally and ratably with any other indebtedness of the Company then entitled to
be so secured, by a direct lien on such Principal Property and certain other
properties. (Section 8.03). The successor corporation formed by any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety, shall succeed to and be
substituted for the Company under the Indenture and thereafter the Company shall
be relieved of all obligations and covenants under the Indenture, the Debt
Securities and any coupons. (Section 8.02).
DEFEASANCE AND COVENANT DEFEASANCE
Defeasance. The Indenture provides as to any series of Debt Securities to
which the provisions described in this paragraph are made applicable, that the
Company will be discharged from any and all obligations in respect of the Debt
Securities of such series (except for certain obligations to register the
transfer and exchange of such Debt Securities, to replace mutilated, destroyed,
lost or stolen Debt Securities, to compensate, reimburse and indemnify the
Trustee, to maintain an office or agency with respect to the Debt Securities and
to hold moneys for payment in trust) upon irrevocable deposit with the Trustee,
in trust, of
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money or U.S. government securities (as described in the Indenture) or a
combination thereof, which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an amount
sufficient to pay and discharge (i) the principal of (and premium, if any) and
each installment of principal of (and premium, if any) and interest, if any, on
such Debt Securities on the Stated Maturity of such principal or installment of
principal or interest, if any, and (ii) any mandatory sinking fund payments or
analogous payments applicable to Debt Securities of such series on the day on
which such payments are due and payable in accordance with the terms of the
Indenture and such Debt Securities. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an Opinion of
Counsel (as specified in the Indenture) to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred. Such opinion must refer to or be based upon a ruling
of the Internal Revenue Service or a change in applicable Federal income tax law
occurring after the date of the Indenture. In the event of any such deposit and
discharge, the holders of such Debt Securities would thereafter be entitled to
look only to such trust fund for payment of principal of (and premium, if any)
and interest, if any, on the Debt Securities. (Section 4.03).
Covenant Defeasance. The Indenture provides as to any series of Debt
Securities to which the provisions described in this paragraph are made
applicable, that (i) the Company may omit to comply with the covenants contained
in Sections 10.05 (Limitations on Liens), 10.06 (Limitations on Sale and Lease-
Back) and 10.07 (Limitations on Change in Subsidiary Status) of the Indenture
and (ii) such noncompliance shall not be deemed to be an Event of Default under
the Indenture and the Debt Securities upon irrevocable deposit with the Trustee,
in trust, of money or U.S. government securities or a combination thereof, which
through the payment of interest and principal in respect thereof in accordance
with their terms will provide money in an amount sufficient to pay and discharge
(x) the principal of (and premium, if any) and each installment of principal of
(and premium, if any) and interest, if any, on such Debt Securities on the
Stated Maturity of such principal or installment of principal or interest, if
any, and (y) any mandatory sinking fund payments or analogous payments
applicable to Debt Securities of such series on the day on which such payments
are due and payable in accordance with the terms of the Indenture and such Debt
Securities. Such a trust may be established only if, among other things, the
Company has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance of certain obligations and will be subject to
Federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred. The obligations of the Company under the Indenture and Debt Securities
other than with respect to the covenants referred to above and the Events of
Default other than the Event of Default referred to above shall remain in full
force and effect. (Section 10.09).
The Prospectus Supplement will state if any defeasance provision will apply
to the Debt Securities.
MODIFICATION OF INDENTURE AND WAIVER OF CERTAIN COVENANTS
With the consent of the holders of at least a majority in principal amount
of the outstanding Debt Securities of each series affected, the Trustee and the
Company may execute a supplemental indenture to change the Indenture or modify
the rights of the holders of Debt Securities of any such series, but, without
the consent of the holder of each outstanding Debt Security so affected, a
supplemental indenture may not, among other things, (i) change the maturity of
principal or interest, if any, on any Debt Security, or reduce the principal
amount thereof or the rate of interest, if any, thereon or any premium payable
on redemption, or (ii) reduce the aforesaid percentage of holders of Debt
Securities of such series whose consent shall be required to authorize any such
supplemental indenture. (Section 9.02).
The holders of a majority in principal amount of the Debt Securities of any
series at the time outstanding may waive compliance by the Company with certain
covenants in the Indenture with respect to Debt Securities of such series.
(Section 10.08).
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The Indenture provides that in determining whether the holders of the
requisite principal amount of the Debt Securities of a series then outstanding
have given any request, demand, authorization, direction, notice, consent or
waiver thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
will be deemed to be outstanding will 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, (ii) the principal amount of a Security
denominated in one or more Foreign Currencies shall be deemed to be the Dollar
equivalent, determined on the date of original issuance of such Security, of the
principal amount thereof (or, in the case of an Original Issue Discount Security
or Indexed Security, the Dollar equivalent on the original issuance date of such
Security of the principal amount determined as provided in (i) above or (iii)
below), (iii) the principal amount of any Indexed Security that will be deemed
outstanding will be equal to the principal face amount of such Indexed Security
at original issuance unless otherwise provided with respect to such Security
pursuant to the Indenture, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such obligor
will be disregarded and deemed not to be outstanding. (Section 1.01).
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series if Debt Securities of that series are issuable as
Bearer Securities. (Section 13.01). A meeting may be called at any time by the
Trustee for such Debt Securities, and also, upon request, by the Company or the
holders of at least 10% in principal amount of the outstanding Debt Securities
of such series, in any such case upon notice given as provided in the Indenture.
(Section 13.02). Except for any consent that must be given by the holder of each
Debt Security affected thereby, as described above, any resolution presented at
a meeting or adjourned meeting duly reconvened at which a quorum is present may
be adopted by the affirmative vote of the holders of a majority in principal
amount of the outstanding Debt Securities of that series; provided, however,
that any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that may be made, given or
taken by the holders of a specified percentage in principal amount of Debt
Securities of a series may be adopted at a meeting or adjourned meeting duly
reconvened at which a quorum is present by the affirmative vote of the holders
of such specified percentage in principal amount of the outstanding Debt
Securities of that series. Any resolution passed or decision taken at any
meeting of holders of Debt Securities of any series duly held in accordance with
the Indenture will be binding on all holders of Debt Securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding Debt Securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the holders of not less than a specified percentage, which is
greater than a majority, in principal amount of the outstanding Debt Securities
of a series, the persons holding or representing such specified percentage in
principal amount of the Debt Securities of such series will constitute a quorum.
(Section 13.04).
DEFAULTS AND CERTAIN RIGHTS ON DEFAULT
An Event of Default with respect to any series of Debt Securities is
defined as being any of the following events and such other events as may be
established for the Debt Securities of such series: default for 30 days in
payment of any interest on the Debt Securities of such series; default in
payment of principal of (and premium, if any, on) the Debt Securities of such
series at Maturity; default for 5 days in payment of any sinking fund payment
with respect to Debt Securities of such series; default for 90 days after notice
in performance of any other covenant in the Indenture; or certain events of
bankruptcy, insolvency, receivership or reorganization relating to the Company.
An Event of Default with respect to Debt Securities of a particular series does
not necessarily constitute an Event of Default with respect to any other series.
The Company will be required to deliver to the Trustee annually a written
statement as to the fulfillment of its obligations under the Indenture. In case
an Event of Default should occur and be continuing with respect to any series of
Debt Securities, the Trustee or the holders of at least 25% in principal amount
of the Debt Securities of such series then outstanding may declare the principal
of all the Debt Securities of such series to be due and payable. Such
declaration may, under certain circumstances, be rescinded by the holders of a
majority in principal amount of the Debt Securities of such series at the time
outstanding. (Sections 5.01, 5.02 and 10.04).
15
<PAGE> 17
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
shall be under no obligation to exercise any of the rights or powers under the
Indenture at the request or direction of any of the holders of Debt Securities,
unless such holders of Debt Securities shall have offered to the Trustee
reasonable security or indemnity. Subject to such provisions for indemnification
and certain limitations contained in the Indenture, the holders of a majority in
principal amount of the Debt Securities of any series at the time outstanding
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 Debt Securities of such series.
The holders of a majority in principal amount of the Debt Securities of any
series at the time outstanding may, in certain cases, waive any past default
with respect to Debt Securities of such series except a default in payment of
principal of, or premium, if any, or interest on any of the Debt Securities of
such series. (Sections 5.12, 5.13 and 6.03).
GOVERNING LAW
The Indenture and the Debt Securities and any coupons appertaining thereto
will be governed by and construed in accordance with the laws of the State of
New York. (Section 1.12).
CONCERNING THE TRUSTEE
The Trustee is one of a number of banks with which the Company maintains
ordinary banking relationships and with which the Company maintains credit
facilities.
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock of the Company, as amended
or superseded by the applicable Prospectus Supplement, includes a summary of
certain provisions of the Company's Restated Certificate of Incorporation, as
amended (the Certificate of Incorporation), and its By-Laws (the By-Laws). Such
description is subject to the detailed provisions of, and is qualified by
reference to, the Certificate of Incorporation and the By-Laws, copies of which
have been filed as exhibits to the Registration Statement of which this
Prospectus is a part.
GENERAL
The Company is authorized to issue (i) 1,000,000,000 shares of Common Stock
and (ii) 25,000,000 shares of Preferred Stock, without par value (Preferred
Stock), of which 2,500,000 shares have been designated as Series A Junior
Participating Preferred Stock (Junior Preferred Stock) for issuance in
connection with the exercise of the Rights. See "Rights Plan".
The Certificate of Incorporation authorizes the Board of Directors to
establish one or more series of Preferred Stock and to determine, with respect
to any series of Preferred Stock, the terms and rights of such series. The
authorized shares of Preferred Stock, as well as Common Stock, will be available
for issuance without further action by the Company's shareowners, unless such
action is required by applicable law or the rules of any stock exchange or
automated quotation system on which the Company's securities may be listed or
traded. If the approval of the Company's shareowners is not so required, the
Board of Directors may determine not to seek shareowner approval.
Certain of the provisions described under this section entitled
"Description of Capital Stock" could have the effect of discouraging
transactions that might lead to a change of control of the Company.
COMMON STOCK
Holders of Common Stock will be entitled to such dividends as may be
declared by the Board of Directors out of any funds of the Company legally
available therefor. Dividends may not be paid on Common Stock unless all accrued
dividends on Preferred Stock, if any, have been paid or set aside. In the event
of any liquidation, dissolution or winding up of the Company, the holders of
Common Stock will be entitled to share pro rata in the assets remaining after
payment to creditors and after payment of the liquidation preference plus
16
<PAGE> 18
any unpaid dividends to holders of any outstanding Preferred Stock, if any. Each
holder of Common Stock will be entitled to one vote for each such share
outstanding in such holder's name. No holder of Common Stock will be entitled to
cumulate such holder's votes in voting for directors. The Certificate of
Incorporation provides that, unless otherwise determined by the Board of
Directors, no holder of Common Stock will, as such holder, have any right to
purchase or subscribe for any stock of any class which the Company may issue or
sell.
The transfer agent and registrar for shares of Common Stock is ChaseMellon
Shareholder Services, L.L.C.
CERTAIN PROVISIONS IN THE CERTIFICATE OF INCORPORATION AND BY-LAWS
Pursuant to the Certificate of Incorporation, the number of directors will
be fixed by the Board of Directors. The directors (other than those elected by
the holders of any series of Preferred Stock or any other series or class of
stock) will be divided into three classes, each class to consist as nearly as
possible of one-third of the directors. Directors elected by shareowners at an
Annual Meeting of Shareowners will be elected by a plurality of all votes cast
at such annual meeting. The term of the successors of each such class of
directors expires three years from the year of election.
The Certificate of Incorporation contains a provision (the Fair Price
Provision) pursuant to which a Business Combination (as defined in the
Certificate of Incorporation) between the Company or a subsidiary of the Company
and an Interested Shareowner (as defined in the Certificate of Incorporation)
requires approval by the affirmative vote of the holders of not less than 80
percent of the voting power of all the outstanding capital stock of the Company
entitled to vote generally in the election of directors (the Voting Power),
voting together as a single class, unless the Business Combination is approved
by at least two-thirds of the Continuing Directors (as defined in the
Certificate of Incorporation) or certain fair price criteria and procedural
requirements specified in the Fair Price Provision are met. If either the
requisite Board of Directors approval or the fair price criteria and procedural
requirements were met, the Business Combination would be subject to the voting
requirements otherwise applicable under the Delaware General Corporation Law
(DGCL), which for most types of Business Combinations currently would be the
affirmative vote of the holders of a majority of the outstanding shares of stock
of the Company entitled to vote thereon. Any amendment or repeal of the Fair
Price Provision, or the adoption of provisions inconsistent therewith, must be
approved by the affirmative vote of the holders of not less than 80 percent of
the Voting Power, voting together as a single class, unless such amendment,
repeal or adoption were approved by at least two-thirds of the Continuing
Directors, in which case the provisions of the DGCL would require the
affirmative vote of the holders of a majority of the outstanding shares of the
Company's stock entitled to vote thereon.
The Certificate of Incorporation and the By-Laws provide that a special
meeting of shareowners may be called only by a resolution adopted by a majority
of the entire Board of Directors. Shareowners are not permitted to call, or to
require that the Board of Directors call, a special meeting of shareowners. In
addition, the Certificate of Incorporation provides that any action taken by the
shareowners of the Company must be effected at an annual or special meeting of
shareowners and may not be taken by written consent in lieu of a meeting. The
By-Laws also establish an advance notice procedure for shareowners to nominate
candidates for election as directors or to bring other business before meetings
of shareowners of the Company.
The Certificate of Incorporation provides that the affirmative vote of at
least 80 percent of the Voting Power, voting together as a single class, would
be required to (i) amend or repeal the provisions of the Certificate of
Incorporation with respect to (A) the election of directors, (B) the right to
call a special shareowners' meeting and (C) the right to act by written consent,
(ii) adopt any provision inconsistent with such provisions and (iii) amend or
repeal the provisions of the Certificate of Incorporation with respect to
amendments to the Certificate of Incorporation or the By-Laws. In addition, the
Certificate of Incorporation provides that the Board of Directors may make,
alter, amend and repeal the by-laws of the Company and that the amendment or
repeal by shareowners of any by-laws of the Company would require the
affirmative vote of at least 80 percent of the Voting Power, voting together as
a single class.
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<PAGE> 19
RIGHTS PLAN
Each outstanding share of Common Stock also evidences one Right. Unless
otherwise specified in the Prospectus Supplement applicable to any convertible
Debt Securities, as long as Rights are associated with the Common Stock, the
Company currently intends to deliver one Right with each new share of Common
Stock issued, including shares issued upon conversion of such Debt Securities,
prior to the expiration or earlier redemption or exchange of the Rights, so that
all such shares of Common Stock will have associated Rights. Each Right will
entitle the registered holder to purchase from the Company one one-hundredth of
a share of Junior Preferred Stock, at $250 (the Purchase Price), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the Rights Agreement) dated as of November 30, 1996 between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights Agent. The
following summary of certain terms of the Rights is qualified by reference to
the Rights Agreement, which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an Acquiring Person)
has acquired beneficial ownership of 20% or more of the outstanding Common Stock
or (ii) 10 business days (or such later date as may be determined by the Board
of Directors prior to such time as any person or group becomes an Acquiring
Person) following the commencement of, or announcement of an intention to make,
a tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of the outstanding
Common Stock (the earlier of such dates being called the Rights Distribution
Date), the Rights will be evidenced by Common Stock certificates.
The Rights Agreement provides that, until the Rights Distribution Date (or
until the earlier redemption or expiration of the Rights), (i) the Rights will
be transferred with and only with the Common Stock, (ii) certificates
representing Common Stock will contain a notation incorporating the terms of the
Rights by reference and (iii) the surrender for transfer of any certificates
representing Common Stock will also constitute the surrender of the Rights
associated therewith. As soon as practicable following the Rights Distribution
Date, separate certificates evidencing the Rights (Right Certificates) will be
mailed to holders of record of the Common Stock as of the close of business on
the Rights Distribution Date and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Rights Distribution Date. The
Rights will expire on December 6, 2006 (the Final Expiration Date), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed by
the Company, in each case, as described below.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Junior Preferred Stock, (ii) upon the grant to holders of shares of Junior
Preferred Stock of certain rights or warrants to subscribe for or purchase
shares of Junior Preferred Stock at a price, or securities convertible into
shares of Junior Preferred Stock with a conversion price, less than the then
current market price of the shares of Junior Preferred Stock or (iii) upon the
distribution to holders of shares of Junior Preferred Stock of evidences of
indebtedness or assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in shares of Junior Preferred
Stock) or of subscription rights or warrants (other than those referred to
above). The number of outstanding Rights and the number of one one-hundredths of
a share of Junior Preferred Stock issuable upon exercise of each Right are also
subject to adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of the Common Stock occurring, in any such case,
prior to the Rights Distribution Date.
Shares of Junior Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. The Junior Preferred Stock will rank junior to all
series of any other class of Preferred Stock with respect to payments of
dividends and distribution of assets. Each share of Junior Preferred Stock will
be entitled to a minimum preferential quarterly dividend payment of $1 per share
but will be entitled to an aggregate dividend of 100 times the dividend declared
per share of Common Stock whenever such dividend is declared. In the
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<PAGE> 20
event of liquidation, the holders of the Junior Preferred Stock will be entitled
to a minimum preferential liquidation payment of $100 per share but will be
entitled to an aggregate payment of 100 times the payment made per share of
Common Stock. Each share of Junior Preferred Stock will have 100 votes, voting
together with the Common Stock. In the event of any merger, consolidation or
other transaction in which shares of Common Stock are exchanged, each share of
Junior Preferred Stock will be entitled to receive 100 times the amount received
per share of Common Stock. These rights are protected by customary antidilution
provisions.
Because of the nature of the Junior Preferred Stock's dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a share of
Junior Preferred Stock purchasable upon exercise of each Right should
approximate the value of one share of Common Stock.
In the event that, at any time after a person has become an Acquiring
Person, the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power is sold,
proper provision will be made so that each holder of a Right will thereafter
have the right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction will have a market value
of two times the exercise price of the Right. In the event that any person
becomes an Acquiring Person, proper provision shall be made so that each holder
of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to receive upon
exercise, in lieu of shares of Junior Preferred Stock, that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
At any time after any person or group of affiliated or associated persons
becomes an Acquiring Person, and prior to the acquisition by such person or
group of 50% or more of the outstanding shares of Common Stock, the Board of
Directors may exchange the Rights for Common Stock or Junior Preferred Stock
(other than Rights owned by such person or group, which will have become void
after such person became an Acquiring Person), in whole or in part, at an
exchange ratio of one share of Common Stock, or one one-hundredth of a share of
Junior Preferred Stock (or of a share of another series of Preferred Stock
having equivalent rights, preferences and privileges), per Right (subject to
adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Junior Preferred Stock will be
issued (other than fractions which are integral multiples of one one-hundredth
of a share of Junior Preferred Stock, which may, at the election of the Company,
be evidenced by depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Junior Preferred Stock on the last
trading day prior to the date of exercise.
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
Common Stock, the Board of Directors may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (the Redemption Price). The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors may determine, in its sole discretion.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price. The terms of the Rights may be amended by the Board of
Directors without the consent of the holders of the Rights, including an
amendment to decrease the threshold at which a person becomes an Acquiring
Person from 20% to not less than 10%, except that from and after such time as
any person becomes an Acquiring Person no such amendment may adversely affect
the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareowner of the Company including, without limitation, the right
to vote or to receive dividends.
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<PAGE> 21
LEGAL MATTERS
The legality of the Debt Securities offered hereby has been passed upon for
the Company by Chadbourne & Parke LLP, 30 Rockefeller Plaza, New York, New York
10112, and if the Debt Securities are being distributed in an underwritten
offering, the legality of such Debt Securities will be passed upon for the
underwriters by Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, New
York 10019-6092.
EXPERTS
The consolidated financial statements and related financial statement
schedule incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended September 30, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in auditing and
accounting.
------------------------
NO DEALER, SALESMAN OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES OFFERED HEREBY BY
ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN
WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR
TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
20
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<CAPTION>
AMOUNT
----------
<S> <C> <C>
Commission Registration Fee............................................ $ 295,000
* Attorneys' Fees and Expenses........................................... 150,000
* Accountants' Fees and Expenses......................................... 75,000
* Trustee's Fees and Expenses............................................ 15,000
* Printing and Engraving................................................. 60,000
* Blue Sky Expenses (including legal fees)............................... 10,000
* Rating Agency Fees..................................................... 850,000
* Miscellaneous.......................................................... 5,000
--------
Total.................................................................. $1,460,000*
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits Delaware corporations to
eliminate or limit the monetary liability of directors to a corporation or its
stockholders for breach of their fiduciary duty of care, subject to certain
limitations (8 Del. G.C.L. sec. 102(b)(7)) and also provides for indemnification
of directors, officers, employees and agents subject to certain limitations (8
Del. G.C.L. sec. 145).
The last paragraph of Article Seventh of the Company's Restated Certificate
of Incorporation, as amended, eliminates monetary liability of directors to the
Company and its shareowners for breach of fiduciary duty as directors to the
extent permitted by Delaware law.
Section 13 of Article III of the By-Laws of the Company and the appendix
thereto entitled Procedures for Submission and Determination of Claims for
Indemnification Pursuant to Article III, Section 13 of the By-Laws provide, in
substance, for the indemnification of directors, officers, employees and agents
of the Company to the extent permitted by Delaware law.
The Company's directors and officers are insured against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act.
In addition, the Company and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which the
Company or such persons may be required to make in respect thereof.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<S> <C> <C>
1 -- Forms of proposed Underwriting Agreement, Terms Agreement and Delayed Delivery
Contract.
4-a -- Indenture dated as of December 1, 1996 between the Company and The Chase Manhattan
Bank (successor to Mellon Bank, N.A.), as Trustee, including table of contents and
cross-reference sheet to Trust Indenture Act of 1939.
4-b-1 -- Restated Certificate of Incorporation of the Company, as amended, filed as Exhibit
3-a-1 to the Company's Annual Report on Form 10-K for the year ended September 30,
1996 (File No. 1-12383), is hereby incorporated by reference.
4-b-2 -- By-Laws of the Company.
</TABLE>
II-1
<PAGE> 23
<TABLE>
<S> <C> <C>
4-b-3 -- Rights Agreement between the Company and ChaseMellon Shareholder Services, L.L.C.,
as rights agent, dated as of November 30, 1996, filed as Exhibit 4-c to
Registration No. 333-17031, is hereby incorporated by reference.
5 -- Opinion of Chadbourne & Parke LLP as to the legality of the securities being
registered.
12 -- Computation of Ratio of Earnings to Fixed Charges for the Five Years Ended
September 30, 1997, filed as Exhibit 12 to the Company's Annual Report on Form
10-K for the year ended September 30, 1997 (File No. 1-12383), is hereby
incorporated by reference.
23-a -- Consent of Deloitte & Touche LLP, independent auditors, set forth at page II-5 of
this Registration Statement.
23-b -- Consent of Chadbourne & Parke LLP contained in their opinion filed as Exhibit 5 to
this Registration Statement.
24 -- Powers of Attorney authorizing certain persons to sign this Registration Statement
on behalf of certain directors and officers of the Company, filed as Exhibit 24 to
the Company's Annual Report on Form 10-K for the year ended September 30, 1997
(File No. 1-12383), is hereby incorporated by reference.
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act
of 1939 of The Chase Manhattan Bank (successor to Mellon Bank, N.A.), the Trustee
under the Indenture.
</TABLE>
ITEM 17. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; (iii) to
include any material information with respect to the plan of distribution
not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement; provided,
however, that clauses (i) and (ii) do not apply if the information required
to be included in a post-effective amendment by those clauses is contained
in periodic reports filed by the Company pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE> 24
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described under Item 15 above or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted against
the Company by such director, officer or controlling person in connection with
the securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 25
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT ON FORM S-3 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF COSTA MESA AND THE STATE OF CALIFORNIA ON THE
23RD DAY OF DECEMBER, 1997.
ROCKWELL INTERNATIONAL CORPORATION
By /s/ WILLIAM J. CALISE, JR.
------------------------------------
(WILLIAM J. CALISE, JR., SENIOR VICE
PRESIDENT,
GENERAL COUNSEL AND SECRETARY)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT ON FORM S-3 HAS BEEN SIGNED ON THE 23RD DAY OF
DECEMBER, 1997 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ -----------------------------------------------
<C> <S>
DONALD R. BEALL* Chairman of the Board and Director
DON H. DAVIS, JR.* President and Chief Executive Officer
(principal executive officer) and Director
LEW ALLEN, JR.* Director
GEORGE L. ARGYROS* Director
RICHARD M. BRESSLER* Director
JUDITH L. ESTRIN* Director
WILLIAM H. GRAY, III* Director
JAMES CLAYBURN LA FORCE, JR.* Director
WILLIAM T. MCCORMICK, JR.* Director
JOHN D. NICHOLS* Director
BRUCE M. ROCKWELL* Director
WILLIAM S. SNEATH* Director
JOSEPH F. TOOT, JR.* Director
W. MICHAEL BARNES* Senior Vice President, Finance & Planning and
Chief Financial Officer (principal financial
officer)
WILLIAM E. SANDERS* Vice President and Controller (principal
accounting officer)
</TABLE>
* By /s/ WILLIAM J. CALISE, JR.
--------------------------------
(WILLIAM J. CALISE, JR.,
ATTORNEY-IN-FACT)**
** By authority of the powers of attorney filed as Exhibit 24 to this
Registration Statement.
II-4
<PAGE> 26
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Rockwell International Corporation on Form S-3 of our report dated November
5, 1997 appearing in the Annual Report on Form 10-K of Rockwell International
Corporation for the year ended September 30, 1997 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
December 22, 1997
CONSENT OF COUNSEL
The consent of Chadbourne & Parke LLP, counsel for the Company, is included
in their opinion filed as Exhibit 5 hereto.
II-5
<PAGE> 27
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ -------------------------------------------------------------------------- ----
<S> <C> <C> <C>
1 -- Forms of proposed Underwriting Agreement, Terms Agreement and Delayed
Delivery Contract.
4-a -- Indenture dated as of December 1, 1996 between the Company and The Chase
Manhattan Bank (successor to Mellon Bank, N.A.), as Trustee, including
table of contents and cross-reference sheet to Trust Indenture Act of
1939.
4-b-1 -- Restated Certificate of Incorporation of the Company, as amended, filed as
Exhibit 3-a-1 to the Company's Annual Report on Form 10-K for the year
ended September 30, 1996 (File No. 1-12383), is hereby incorporated by
reference.
4-b-2 -- By-Laws of the Company.
4-b-3 -- Rights Agreement between the Company and ChaseMellon Shareholder Services,
L.L.C., as rights agent, dated as of November 30, 1996, filed as Exhibit
4-c to Registration No. 333-17031, is hereby incorporated by reference.
5 -- Opinion of Chadbourne & Parke LLP as to the legality of the securities
being registered.
12 -- Computation of Ratio of Earnings to Fixed Charges for the Five Years Ended
September 30, 1997, filed as Exhibit 12 to the Company's Annual Report on
Form 10-K for the year ended September 30, 1997 (File No. 1-12383), is
hereby incorporated by reference.
23-a -- Consent of Deloitte & Touche LLP, independent auditors, set forth at page
II-5 of this Registration Statement.
23-b -- Consent of Chadbourne & Parke LLP contained in their opinion filed as
Exhibit 5 to this Registration Statement.
24 -- Powers of Attorney authorizing certain persons to sign this Registration
Statement on behalf of certain directors and officers of the Company,
filed as Exhibit 24 to the Company's Annual Report on Form 10-K for the
year ended September 30, 1997 (File No. 1-12383), is hereby incorporated
by reference.
25 -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank (successor to Mellon
Bank, N.A.), the Trustee under the Indenture.
</TABLE>
<PAGE> 1
Exhibit 1
ROCKWELL INTERNATIONAL CORPORATION
NOTES DUE
UNDERWRITING AGREEMENT
To the Representative or Representatives
named in Schedule A hereto of the
Underwriters named in Schedule B
hereto
Ladies and Gentlemen:
The undersigned Rockwell International Corporation, a Delaware
corporation (the "Company"), confirms its agreement with the several
underwriters named in Schedule B hereto (the "Underwriters") as set forth below.
If the firm or firms listed in Schedule B hereto include only the firm or firms
listed in Schedule A hereto (the "Representatives"), then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
The Company proposes to issue and sell debt securities of the title and
amount set forth in Schedule A hereto (the "Purchased Securities"), to be issued
under the Indenture dated as of December 1, 1996 (the "Indenture") between the
Company and Mellon Bank, N.A., as Trustee. The Purchased Securities may be
convertible into or exchangeable for shares of Common Stock, par value $1 per
share, of the Company (the "Common Stock") as provided in or pursuant to the
Indenture, and Preferred Share Purchase Rights (the "Rights") may be delivered
with Common Stock upon conversion or exchange of any convertible or exchangeable
Purchased Securities. The term "Purchased Securities" shall not include the
Common Stock or Rights, if any, issuable or deliverable upon conversion or
exchange of any convertible or exchangeable debt securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (No. 333- ) relating to
$1,000,000,000 of debt securities and shares of Common Stock and Rights, if any,
issuable or deliverable upon conversion or exchange of any convertible or
exchangeable debt securities, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"). Such Registration Statement has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such Registration Statement and the
Prospectus or Prospectuses relating to the sale of Purchased Securities by the
Company constituting a part thereof, including all documents incorporated
therein by reference, as from time to time may be amended or supplemented,
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act
<PAGE> 2
or otherwise, are in each case collectively referred to herein as the
"Registration Statement" and the "Prospectus", respectively; provided, however,
that a supplement of the Prospectus contemplated by Section 3(a) (a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only with
respect to the offering of the Purchased Securities to which it relates and such
Prospectus Supplement shall be the only supplement included in the terms
"Registration Statement" or "Prospectus". If the Company elects to rely on Rule
434 under the 1933 Act, all references to the Prospectus shall be deemed to
include, without limitation, the form of prospectus and the term sheet, taken
together, provided to the Representatives by the Company in reliance on such
Rule 434. If the Company files a registration statement to register a portion of
the Purchased Securities and relies on Rule 462(b) under the 1933 Act for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be both the registration statement referred
to above (No. 333- ) and the Rule 462 Registration Statement, as each such
registration statement may be amended pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective complied, and as of the
date hereof complies, in all material respects with the requirements of
the 1933 Act, the rules and regulations thereunder (the "Regulations"),
the 1934 Act and the rules and regulations thereunder and the 1939 Act.
The Registration Statement, at the time the Registration Statement
became effective did not, and as of the date hereof does not, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective did not, and as of the date hereof does not,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply (i) to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or (ii) to that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) (the "Form
T-1") of the Trustee under the Indenture.
2
<PAGE> 3
(b) Any documents incorporated by reference in the
Registration Statement and the Prospectus subsequent to the date hereof
will, when filed with the Commission, conform in all material respects
to the requirements of the 1934 Act and the rules and regulations
thereunder, and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change in the condition, financial or otherwise, or
the results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(d) Each of the Company and Allen-Bradley Company, Inc., a
Wisconsin corporation, Reliance Electric Company, a Delaware
corporation, Rockwell Collins, Inc., a Delaware corporation, and
Rockwell Semiconductor Systems, Inc., a Delaware corporation
(collectively, the "Named Subsidiaries"), has been duly incorporated,
is a validly existing corporation in good standing under the laws of
its state of its incorporation and has the requisite corporate power
and authority to carry on its business as currently being conducted, to
own, lease and operate its properties, and each is duly qualified and
is in good standing as a foreign corporation in each jurisdiction
wherein the character of the property owned or held under lease by it
makes such qualification necessary, except in such jurisdictions where
the failure so to qualify or to be in good standing will not subject
the Company to any liability material to the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise.
(e) All of the outstanding shares of capital stock of each
Named Subsidiary are validly issued, fully paid and nonassessable and
not subject to any preemptive rights, and all of the outstanding shares
of capital stock of each Named Subsidiary are owned by the Company,
free and clear of any security interest, mortgage, pledge, claim, lien
or encumbrance (each, a "Lien"). There are no outstanding
subscriptions, rights, warrants, options, calls, commitments for sale
or Liens related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of any Named Subsidiary.
(f) The execution and delivery of this Agreement, the Delayed
Delivery Contracts (as defined below), if any, and the Indenture and
the consummation of the transactions contemplated herein and therein
have been duly authorized by
3
<PAGE> 4
all necessary corporate action; each of this Agreement and the
Indenture are, and when duly executed and delivered in accordance with
their terms, the Delayed Delivery Contracts, if any, will be, valid and
legally binding agreements of the Company and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company is
a party or by which it may be bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation, as amended, or By-Laws of the Company or, to the best of
its knowledge, any law, administrative regulation or administrative or
court decree applicable to the Company; and no consent, approval,
authorization or order of any court or governmental authority or agency
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under
the 1933 Act, the 1939 Act or the Regulations or state securities or
Blue Sky laws.
(g) The Purchased Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when duly executed,
authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor in accordance with this Agreement, the Purchased Securities
will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be entitled to the benefits
of the Indenture, which will be substantially in the form heretofore
delivered to you, except as supplemented to reflect the terms of any
one or more series of debt securities.
(h) The shares of Common Stock initially issuable upon the
conversion or exchange of any Purchased Securities that are convertible
into or exchangeable for shares of Common Stock have been duly
authorized and reserved for such issuance, and the shares of Common
Stock, if any, issued upon conversion or exchange of any such
convertible or exchangeable Purchased Securities in accordance with
their terms will be validly issued, fully paid and non-assessable and
the associated Rights, if any, have been duly authorized and will be
validly issued.
(i) The Purchased Securities, the Indenture, the Common Stock
and the Rights, if any, conform in all material
4
<PAGE> 5
respects to all statements relating thereto contained in or
incorporated by reference into the Prospectus and the applicable
Prospectus Supplement.
(j) No strike or labor stoppage by the employees of the
Company or any subsidiary exists, or, to the knowledge of the Company,
is imminent which is expected to have a material adverse effect upon
the conduct of the business, or the earnings, operations or condition,
financial or otherwise, of the Company and its subsidiaries, considered
as one enterprise.
Any certificate signed by any officer of the Company and delivered to
you or counsel for the Underwriters in connection with an offering of Purchased
Securities shall be deemed a representation and warranty by the Company, as to
the matters covered thereby, to each Underwriter participating in such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments of
the Underwriters to purchase Purchased Securities in the respective amounts set
forth on Schedule B hereto shall be deemed to have been made on the basis of the
representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by
certified or official bank check or checks in New York Clearing House or similar
next day funds payable to the order of the Company against delivery to you for
the respective accounts of the Underwriters of the Purchased Securities to be
purchased by them. Such Purchased Securities shall be in such denominations and
registered in such names as you may request in writing at least two business
days prior to the Closing Time. Such Purchased Securities, which may be in
temporary form, will be made available for examination and packaging by you on
or before the first business day prior to the Closing Time.
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single temporary global security
without coupons (the "Global Debt Security") evidencing the Purchased Securities
that are in bearer form to a common Depositary for Morgan Guaranty Trust Company
of New York, Brussels office, as operator of the Euro-clear System
("Euro-clear"), and for Centrale de Livraison de Valeurs Mobilieres S.A.
("CEDEL") for credit to the respective accounts at Euro-clear or CEDEL of each
Underwriter or to such other accounts as such Underwriter may direct. Any Global
Debt
5
<PAGE> 6
Security shall be delivered to you not later than the Closing Time, against
payment of funds to the Company in the net amount due to the Company for such
Global Debt Security by the method and in the form set forth in Schedule A
hereto. The Company shall cause definitive Purchased Securities in bearer form
to be prepared and delivered in exchange for such Global Debt Security in such
manner and at such time as may be provided in or pursuant to the Indenture;
provided, however, that the Global Debt Security shall be exchangeable for
definitive Purchased Securities in bearer form only on or after the date
specified for such purpose in the Prospectus.
If authorized in Schedule A hereto, the Underwriters named therein may
solicit offers to purchase debt securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit I hereto with such changes therein as the Company may approve. Any
Purchased Securities purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein referred to as "Contract Securities". As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
you at the Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Contract Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in Schedule A
hereto. At the Closing Time the Company will enter into Delayed Delivery
Contracts with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule A hereto.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
Delayed Delivery Contracts are to be only with such investors and in
such amounts as are approved by the Company. You are to submit to the Company at
least three business days prior to the Closing Time, the names of any investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Contract Securities to be purchased by
each of them, and the Company will advise you, at least two business days prior
to the Closing Time, of the names of the investors with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount
of Contract Securities to be covered by each such Delayed Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts, the
aggregate principal amount of Contract Securities will be deducted from the
aggregate principal amount of Purchased Securities to be purchased by the
several Underwriters and the principal amount of the Purchased Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Purchased Securities set forth opposite each Underwriter's
name in Schedule B hereto, except to the extent that the Representatives
determine that such reduction shall be
6
<PAGE> 7
otherwise than pro rata and so advise the Company in writing; provided, however,
that the aggregate principal amount of Purchased Securities to be purchased by
all Underwriters shall be the aggregate principal amount of Purchased Securities
less the aggregate principal amount of Contract Securities.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the
principal amount of Purchased Securities covered thereby and their
terms not otherwise specified in the Indenture, the names of the
Underwriters participating in the offering and the principal amount of
Purchased Securities which each severally has agreed to purchase, the
names of the Underwriters acting as Representatives in connection with
the offering, the price at which the Purchased Securities are to be
purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and
the Company deem appropriate in connection with the offering of the
Purchased Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424
of the Regulations and will furnish to the Underwriters named therein
as many copies of the Prospectus and such Prospectus Supplement as you
shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Purchased
Securities any event shall occur or condition exist as a result of
which it is necessary to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be
necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of
the 1933 Act or the Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(c) The Company will make generally available to its security
holders, in each case as soon as practicable, an earnings statement (in
form complying with the provisions of Section 11(a) of the 1933 Act and
the Regulations, which need not be certified by independent certified
public
7
<PAGE> 8
accountants unless required by the 1933 Act or the Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in Rule 158 of the Regulations) of the Registration Statement.
(d) The Company will give you notice of its intention to file
any amendment to the Registration Statement or any supplement to the
Prospectus with respect to the Purchased Securities, other than those
made by the filing of documents pursuant to the 1934 Act, will furnish
you with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any
such amendment or supplement in a form to which you or your counsel
shall reasonably object.
(e) The Company will notify each of you immediately, and
confirm the notice in writing, (i) of the filing or effectiveness of
any amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the
Prospectus, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or any
Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus with respect to the Purchased Securities or for
additional information with respect thereto, and (v) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed)
and each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request and will
also deliver to you a conformed copy of the Registration Statement and
each amendment thereto for each of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to
qualify the Purchased Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Purchased Securities; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
take any action which would subject it to general consent
8
<PAGE> 9
to service of process in any state in which it is not now qualified or
not now so subject. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Purchased Securities have been qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act.
(i) Between the date of this Agreement and the Closing Time
with respect to the Purchased Securities covered thereby, the Company
will not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company with a maturity
of more than one year.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Purchased Securities pursuant to this Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, as of the date hereof and as of the Closing Time, to
the accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or, to the
knowledge of the Company or the Underwriters, threatened by the
Commission, (ii) the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company
as of the date of this Agreement shall not have been lowered since that
date and no such rating agency shall have publicly announced since that
date that it is placing any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading and (iii) the
Prospectus, together with the applicable Prospectus Supplement, shall
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing
Time, of Chadbourne & Parke LLP, counsel for the Company, in form and
substance satisfactory to you, to the effect that:
9
<PAGE> 10
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(iii) This Agreement and the Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The Purchased Securities have been duly
authorized by all necessary corporate action and, when duly
executed and authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement and any
applicable Delayed Delivery Contract, will be valid and
binding obligations of the Company, enforceable in accordance
with their terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting the enforcement of
creditors' rights in general and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
(vi) The shares of Common Stock initially
issuable upon the conversion or exchange of any Purchased
Securities that are convertible into or exchangeable for
shares of Common Stock have been duly authorized and reserved
for such issuance, and the shares of Common Stock, if any,
issued upon conversion or exchange of any such convertible or
exchangeable Purchased Securities in accordance with their
terms will be validly issued, fully paid and non-assessable
and the associated Rights, if any, have been duly authorized
and will be validly issued.
(vii) The Indenture, the Purchased
Securities, the Common Stock and the Rights, if any, conform
in all material respects to the descriptions
10
<PAGE> 11
thereof contained in or incorporated by reference into the
Prospectus and the applicable Prospectus Supplement.
(viii) The Indenture is qualified under the
1939 Act.
(ix) The Registration Statement is effective
under the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(x) The Registration Statement (other than
the financial statements and other financial data included or
incorporated by reference therein, as to which no opinion need
be rendered) complies as to form in all material respects with
the requirements of the 1933 Act, the 1939 Act (other than
Form T-1, as to which no opinion need be rendered) and the
Regulations, and nothing has come to their attention that
would lead them to believe that the Registration Statement
(other than the financial statements and other financial data
included or incorporated by reference therein, as to which no
opinion need be rendered), as of the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the Closing
Time (other than the financial statements and other financial
data included or incorporated by reference therein, as to
which no opinion need be rendered), contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(xi) Each document, if any, filed pursuant
to the 1934 Act (other than the financial statements and other
financial data included or incorporated by reference therein,
as to which no opinion need be rendered) and incorporated by
reference in the Prospectus, complied when so filed as to form
in all material respects with the 1934 Act and the rules and
regulations thereunder.
(xii) No consent, approval, authorization or
order of any court or governmental authority or agency is
required in connection with the sale by the Company of the
Purchased Securities to the Underwriters, except such as may
be required under the 1933 Act, the
11
<PAGE> 12
Regulations, the 1939 Act and any state securities laws, and
to the best of their knowledge and information, the execution
and delivery of this Agreement, the Delayed Delivery
Contracts, if any, and the Indenture and the consummation of
the transactions contemplated herein will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to them
to which the Company or any of its subsidiaries is a party or
by which it or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions of the
Restated Certificate of Incorporation, as amended, or By-Laws
of the Company, or to the best of their knowledge any law,
administrative regulation or administrative or court decree
applicable to the Company.
(2) The favorable opinion, dated as of the Closing
Time, of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company is duly qualified as a
foreign corporation and is in good standing in the States of
California and Pennsylvania and in each other jurisdiction
wherein the character of the property owned or held under
lease by it makes such qualification necessary, except in such
jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise.
(ii) Each of the Named Subsidiaries is a
subsidiary of the Company, has been duly incorporated and is a
validly existing corporation in good standing under the laws
of the state of its incorporation and is duly qualified and is
in good standing as a foreign corporation in each jurisdiction
wherein the character of the property owned or held under
lease by it makes such qualification necessary, except in such
jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise; the
outstanding shares of capital stock of each such Named
Subsidiary are validly issued, fully paid and nonassessable;
and all of such
12
<PAGE> 13
capital stock is owned by the Company free and clear of any
Lien.
(iii) The execution and delivery of this
Agreement, the Delayed Delivery Contracts, if any, and the
Indenture and the consummation of the transactions
contemplated herein will not conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or, to the best
of his knowledge, by which it or any of them may be bound or
to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or By-Laws of the Company or any
law, administrative regulation or administrative or court
decree applicable to the Company.
(iv) There is no litigation or governmental
proceeding pending or, to the best of his knowledge,
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement and
the Delayed Delivery Contracts, if any, which would have a
material adverse effect on the financial position or
consolidated financial statements of the Company and its
subsidiaries as a whole or which is required to be disclosed
in the Prospectus which is not adequately disclosed therein.
(v) To the best of his knowledge, there are
no contracts which are required to be filed as exhibits to the
Registration Statement which are not so filed or which are
required to be disclosed in the Prospectus which are not
adequately disclosed therein.
(3) The favorable opinion or opinions, dated as of
the Closing Time, of Dewey Ballantine LLP, counsel for the
Underwriters, with respect to the incorporation of the Company, the
validity of the Purchased Securities delivered at the Closing Time, the
Registration Statement, the Prospectus and such other related matters
as the Representatives may require.
(c) At the Closing Time there shall not have been, since the
date of this Agreement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered
as one enterprise, or any development involving a material adverse
prospective change in or affecting particularly the financial condition
13
<PAGE> 14
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and you
shall have received a certificate of the President or a Vice President
of the Company, dated as of the Closing Time, to the effect that there
has been no such material adverse change or prospective change and to
the effect that the representations and warranties of the Company
contained in Section 1 are true and correct as of the Closing Time.
(d) You shall have received from Deloitte & Touche LLP a
letter, addressed to you and dated as of the Closing Time and delivered
at such time, in form satisfactory to you and concerning such matters
as you shall reasonably request.
(e) At the Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Purchased Securities as herein contemplated
and related proceedings or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Purchased Securities as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Purchased Securities
to the Underwriters, (iii) the fees and disbursements of the Company's counsel
and accountants, (iv) the qualification of the Purchased Securities under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Survey and Legal Investment Survey, (v) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto, and of the Prospectus, (vi)
the printing and delivery to the Underwriters of copies of the Indenture and any
Blue Sky Survey and Legal Investment Survey, (vii) the fees of rating agencies
and (viii) the fees and expenses, if any, incurred in
14
<PAGE> 15
connection with the listing of the Purchased Securities on the New York Stock
Exchange.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters in connection with the
subject matter of this Agreement. The Company shall not in any event be liable
to any of the Underwriters for loss of anticipated profits from the transactions
contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) subject to subparagraph (c), against any and all expense
whatsoever as and when incurred (including the fees and disbursements
of counsel chosen by you) reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
15
<PAGE> 16
This indemnity is subject to the condition that, insofar as it relates
to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus, it shall not inure to the benefit of any
Underwriter from whom the person asserting the claim purchased the Purchased
Securities (or to the benefit of any person who controls such Underwriter) if a
copy of the Prospectus (excluding documents incorporated by reference therein),
as amended or supplemented prior to the written confirmation mentioned below,
was not delivered to such person at or prior to the written confirmation of the
sale of such Purchased Securities and the delivery thereof would constitute a
defense against the claim asserted by such person.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of this Agreement, is a director, officer or controlling person
of the Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental investigation or
proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding subsections (a)
and (b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
but failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of subsections (a) and (b)
above. The indemnifying party shall have the right to retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements as incurred of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the
16
<PAGE> 17
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and the
indemnified party shall have reasonably concluded that representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such separate firm shall be
designated in writing by you in the case of parties indemnified pursuant to
subsection (a) of this Section and by the Company in the case of parties
indemnified pursuant to subsection (b) of this Section.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters of the Purchased Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Purchased Securities received by the
Company on the one hand and by such Underwriters on the other hand, provided
that if the Purchased Securities are offered by Underwriters at an initial
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as the Company.
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
17
<PAGE> 18
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Purchased Securities to the Underwriters.
SECTION 9. Termination. You may terminate this Agreement, immediately
upon notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the date of this Agreement, any material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your reasonable judgment, is material and adverse, which makes it
impracticable to market the Purchased Securities or enforce contracts for the
sale of the Purchased Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities. In the event of any such termination, the provisions of
Section 5, the indemnity agreement set forth in Section 6, the contribution
provisions set forth in Section 7, and the provisions of Section 8 and 13 shall
remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating
in an offering of Purchased Securities shall fail at the Closing Time to
purchase the Purchased Securities which it or they are obligated to purchase
hereunder (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements satisfactory to the Company for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth. If, however, during such 24
hours you shall not have completed such arrangements for the purchase of all of
the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of
18
<PAGE> 19
the Purchased Securities to be purchased pursuant to this Agreement,
this Agreement shall terminate, without any liability on the part of
any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the Closing Time, subject to termination of this Agreement as provided
in subsection (b) above, for a period of time not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at 700 Anton Boulevard,
Suite 700, Costa Mesa, California 92626, attention of the Secretary with a copy
to the Treasurer.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Section 6 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Purchased Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
19
<PAGE> 20
SECTION 13. Governing Law. This Agreement shall be governed by the laws
of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
ROCKWELL INTERNATIONAL CORPORATION
By:_______________________________
CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By:________________________________________
By:________________________________________
20
<PAGE> 21
SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated
Representative(s):
Title of Securities:
Amount of Securities:
Price to Public:
Purchase Price:
Delayed Delivery -
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing -
Office for delivery of Securities:
Office for payment for Securities:
Date and time of Closing:
Office for checking Securities:
Underwriting commissions or other compensation:
Addresses for notices per Section 11:
<PAGE> 22
SCHEDULE B
Underwriting Agreement dated
<TABLE>
<CAPTION>
PRINCIPAL
UNDERWRITER AMOUNT
- ----------- ---------
<S> <C>
---------
=========
</TABLE>
<PAGE> 23
EXHIBIT I
ROCKWELL INTERNATIONAL CORPORATION
(A DELAWARE CORPORATION)
[TITLE OF SECURITY]
DELAYED DELIVERY CONTRACT
[Date]
ROCKWELL INTERNATIONAL CORPORATION
600 Anton Boulevard
Suite 700
Costa Mesa, California 92626
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Rockwell International
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned on _________________, ____ (the "Delivery Date"),
_____________ principal amount of the Company's _______________________ (the
"Securities"), offered by the Company's Prospectus dated ___________, ____, as
supplemented by its Prospectus Supplement dated __________________, ____,
receipt of which is hereby acknowledged, at a purchase price of ___% the
principal amount thereof, plus accrued interest from _________________, ____, to
the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds, at the office of [name and
address] or at such other place as the undersigned and the Company shall agree,
on the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive form and in such authorized
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _______________, ____,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of
<PAGE> 24
the Securities as is to be sold to them pursuant to the Underwriting Agreement
dated ______________, ____, between the Company and the Underwriters less the
principal amount thereof covered by this and other similar contracts. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_____________ and that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at the
address set forth below. This will become a binding contract between the Company
and the undersigned when such copy is so mailed or delivered.
<PAGE> 25
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
___________________________
(Name of Purchaser)
By_________________________
(Title)
___________________________
___________________________
(Address)
Accepted as of the date first above written.
ROCKWELL INTERNATIONAL CORPORATION
By________________________________
<PAGE> 26
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (including Area Code)
- ---- ---------------------
<PAGE> 1
Exhibit 4-a
---------------------------------------------------------------------
NEW ROCKWELL INTERNATIONAL CORPORATION
(to be renamed Rockwell International Corporation)
AND
MELLON BANK, N.A.
as Trustee
-------------------------
INDENTURE
Dated as of
December 1, 1996
-------------------------
Debt Securities
---------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS*
-----------------
PAGE
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions..........................................1
"this Indenture" and certain other terms.............1
"Act"................................................2
"Affiliate"..........................................2
"Authenticating Agent"...............................3
"Authorized Newspaper"...............................3
"Bearer Security"....................................3
"Board of Directors".................................3
"Board Resolution"...................................3
"Business Day".......................................3
"capital stock"......................................3
"CEDEL"..............................................3
"Commission".........................................4
"Company"............................................4
"Company Request", "Company Order" and "Company
Consent"..........................................4
"Consolidated Funded Debt"...........................4
"Conversion Date"....................................4
"Conversion Event"...................................4
"corporation"........................................4
"coupon".............................................5
"Currency"...........................................5
"Defaulted Interest".................................5
"Depositary".........................................5
"Designated Currency"................................5
"Dollar" or "$"......................................5
"ECU"................................................5
"Euroclear"..........................................5
"European Communities"...............................5
"European Monetary System"...........................6
"Event of Default"...................................6
"Exchange Date"......................................6
"Exchange Rate Agent"................................6
"Exchange Rate Officer's Certificate"................6
- ------------------------------
* The Table of Contents is not part of the Indenture.
i
<PAGE> 3
"Foreign Currency"...................................6
"Funded Debt"........................................6
"Global Security"....................................7
"Holder" or "Securityholder".........................7
"indebtedness".......................................7
"Indexed Security"...................................8
"interest"...........................................8
"Interest Payment Date"..............................8
"mandatory sinking fund payment".....................8
"Market Exchange Rate"...............................8
"Maturity"...........................................9
"Officers' Certificate"..............................9
"Opinion of Counsel".................................9
"optional sinking fund payment"......................9
"Original Issue Discount Security"..................10
"Outstanding".......................................10
"Paying Agent"......................................11
"Permanent Global Security".........................11
"Person"............................................11
"Place of Payment"..................................12
"Predecessor Securities"............................12
"preferred stock"...................................12
"Principal Property"................................12
"Redemption Date"...................................12
"Redemption Price"..................................12
"Registered Security"...............................13
"Regular Record Date"...............................13
"Remarketing Entity"................................13
"Repayment Date"....................................13
"Repayment Price"...................................13
"Responsible Officer"...............................13
"Restricted Subsidiary".............................13
"Sale and Lease-Back Transaction"...................14
"Secured Debt"......................................14
"Securities"........................................14
"Security Register" and "Security
Registrar".......................................14
"Shareowners' Equity"...............................14
"Special Record Date"...............................14
"Stated Maturity"...................................14
"Subordinated Debt".................................15
"Subsidiary"........................................15
"Trustee"...........................................15
"Trust Indenture Act" or "TIA"......................15
"United States".....................................15
"United States Alien"...............................16
"Unrestricted Subsidiary"...........................16
"Valuation Date"....................................16
"Wholly-owned Restricted Subsidiary"................16
"Yield to Maturity".................................16
ii
<PAGE> 4
Section 1.02. Compliance Certificates and Opinions...................17
Section 1.03. Form of Documents Delivered to Trustee.................17
Section 1.04. Acts of Securityholders................................18
Section 1.05. Notices, etc., to Trustee and Company..................21
Section 1.06. Notices to Securityholders; Waiver.....................21
Section 1.07. Conflict with Trust Indenture Act......................23
Section 1.08. Effect of Headings and Table of Contents...............23
Section 1.09. Successors and Assigns.................................23
Section 1.10. Separability Clause....................................23
Section 1.11. Benefits of Indenture..................................24
Section 1.12. Governing Law..........................................24
Section 1.13. Payments Due on Non-Business Days......................24
ARTICLE TWO
FORMS OF SECURITIES
Section 2.01. Forms Generally........................................25
Section 2.02. Form of Trustee's Certificate of Authentication........26
Section 2.03. Global Securities......................................26
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series...................28
Section 3.02. Denominations..........................................34
Section 3.03. Execution, Authentication and Delivery.................34
Section 3.04. Temporary Securities...................................37
Section 3.05. Registration, Registration of Transfer and Exchange....41
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.......47
Section 3.07. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.........................48
Section 3.08. Persons Deemed Owners..................................53
Section 3.09. Cancellation...........................................54
Section 3.10. Currency and Manner of Payments in Respect of
Securities......................................54
Section 3.11. Appointment and Resignation of Successor Exchange Rate
Agent...........................................59
Section 3.12. Optional Extension of Maturity.........................60
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<PAGE> 5
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture................62
Section 4.02. Application of Trust Money.............................64
Section 4.03. Defeasance and Discharge of Securities of any Series...65
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default......................................68
Section 5.02. Acceleration of Maturity; Rescission and Annulment.....69
Section 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................71
Section 5.04. Trustee May File Proofs of Claim.......................72
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons...........................73
Section 5.06. Application of Money Collected.........................73
Section 5.07. Limitation on Suits....................................74
Section 5.08. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest.................75
Section 5.09. Restoration of Rights and Remedies.....................76
Section 5.10. Rights and Remedies Cumulative.........................76
Section 5.11. Delay or Omission Not Waiver...........................76
Section 5.12. Control by Securityholders.............................77
Section 5.13. Waiver of Past Defaults................................77
Section 5.14. Undertaking for Costs..................................78
Section 5.15. Waiver of Stay or Extension Laws.......................78
Section 5.16. Judgment Currency......................................79
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities....................80
Section 6.02. Notice of Default......................................81
Section 6.03. Certain Rights of Trustee..............................82
Section 6.04. Not Responsible for Recitals or Issuance of Securities.83
Section 6.05. May Hold Securities....................................84
Section 6.06. Money Held in Trust....................................84
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<PAGE> 6
Section 6.07. Compensation and Reimbursement.........................84
Section 6.08. Disqualification; Conflicting Interests................85
Section 6.09. Corporate Trustee Required; Eligibility................85
Section 6.10. Resignation and Removal; Appointment of Successor......86
Section 6.11. Acceptance of Appointment by Successor.................88
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.............................89
Section 6.13. Preferential Collection of Claims Against Company......90
Section 6.14. Appointment of Authenticating Agent....................90
ARTICLE SEVEN
SECURITYHOLDERS LIST AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of
Securityholders.................................92
Section 7.02. Preservation of Information; Communications to
Securityholders.................................93
Section 7.03. Reports by Trustee.....................................95
Section 7.04. Reports by Company.....................................95
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01. Company May Consolidate, etc., Only on Certain Terms...96
Section 8.02. Successor Corporation Substituted......................97
Section 8.03. Securities to be Secured in Certain Events.............97
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of
Securityholders.................................98
Section 9.02. Supplemental Indentures with Consent of
Securityholders................................100
Section 9.03. Execution of Supplemental Indentures..................101
Section 9.04. Effect of Supplemental Indentures.....................101
Section 9.05. Conformity with Trust Indenture Act...................102
Section 9.06. Reference in Securities to Supplemental Indentures....102
v
<PAGE> 7
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium and Interest...........102
Section 10.02. Maintenance of Offices or Agencies...................103
Section 10.03. Money for Securities Payments to be Held in Trust....105
Section 10.04. Statement as to Compliance...........................106
Section 10.05. Limitations on Liens.................................107
Section 10.06. Limitations on Sale and Lease-Back...................111
Section 10.07. Limitations on Change in Subsidiary Status...........112
Section 10.08. Waiver of Covenants..................................113
Section 10.09. Defeasance of Certain Obligations....................113
Section 10.10. Additional Amounts...................................115
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption..................................116
Section 11.02. Applicability of Article.............................117
Section 11.03. Election to Redeem; Notice to Trustee................117
Section 11.04. Selection by Trustee of Securities to be Redeemed....117
Section 11.05. Notice of Redemption.................................118
Section 11.06. Deposit of Redemption Price..........................119
Section 11.07. Securities Payable on Redemption Date................119
Section 11.08. Securities Redeemed in Part..........................121
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.............................121
Section 12.02. Satisfaction of Sinking Fund Payments with
Securities....................................122
Section 12.03. Redemption of Securities for Sinking Fund............122
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<PAGE> 8
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01. Purposes for Which Meetings May Be Called............123
Section 13.02. Call, Notice and Place of Meetings...................123
Section 13.03. Persons Entitled to Vote at Meetings.................124
Section 13.04. Quorum; Action.......................................124
Section 13.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings........................126
Section 13.06. Counting Votes and Recording Action of Meetings......127
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 14.01. Applicability of Article.............................128
Section 14.02. Repayment of Securities..............................128
Section 14.03. Exercise of Option; Notice...........................128
Section 14.04. Election of Repayment by Remarketing Entities........130
Section 14.05. Securities Payable on the Repayment Date.............130
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, SHAREOWNERS, OFFICERS
AND DIRECTORS
Section 15.01. Exemption from Individual Liability..................131
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<PAGE> 9
TABLE SHOWING REFLECTION IN THE INDENTURE OF CERTAIN PROVISIONS OF
TRUST INDENTURE ACT OF 1939*
TIA Indenture Section
--- -----------------
Section 310(a)(1)................ 6.09
(a)(2)................ 6.09
(a)(3)................ Not Applicable
(a)(4)................ Not Applicable
(a)(5)................ Not Applicable
(b)................... 6.08
(c)................... Not Applicable
Section 311(a)................... 6.13
(b)................... 6.13
(c)................... Not Applicable
Section 312(a)................... 7.01, 7.02(a)
(b)................... 7.02(b)
(c)................... 7.02(c)
Section 313(a)................... 7.03
(b)................... 7.03
(c)................... 7.03
(d)................... 7.03
Section 314(a)................... 7.04
(b)................... Not Applicable
(c)(1)................ 1.02
(c)(2)................ 1.02
(c)(3)................ Not Applicable
(d)................... Not Applicable
(e)................... 1.02
Section 315(a)................... 6.01(a), 6.01(c)
(b)................... 6.02, 7.03
(c)................... 6.01(b)
(d)................... 6.01
(d)(1)................ 6.01(a)
(d)(2)................ 6.01(c)(2)
(d)(3)................ 6.01(c)(3)
(e)................... 5.14
Section 316(a)................... 1.01 ("Outstanding")
(a)(1)(A)............. 5.12
(a)(1)(B)............. 5.13
(a)(2)................ Not Applicable
(b)................... 5.08
(c)................... 1.04(f)
Section 317(a)(1)................ 5.03
(a)(2)................ 5.04
(b)................... 10.03
Section 318(a)................... 1.07
- ----------------------------------
* This Table is not part of the Indenture.
viii
<PAGE> 10
INDENTURE dated as of December 1, 1996 between NEW ROCKWELL
INTERNATIONAL CORPORATION (to be renamed Rockwell International Corporation), a
Delaware corporation (hereinafter called the "Company") having its principal
office at 2201 Seal Beach Boulevard, Seal Beach, California 90740-8250, and
MELLON BANK, N.A., as trustee, a national banking association (hereinafter
called the "Trustee") having its principal corporate trust office at Two Mellon
Bank Center, Room 325, Pittsburgh, Pennsylvania 15259.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance hereunder 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 covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the term "this 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 and shall include the terms of particular
<PAGE> 11
series of Securities established as contemplated by Section 3.01;
(2) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
other subdivisions of this instrument as originally executed. 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;
(3) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(4) 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;
(5) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(6) certain terms, used principally in Article Three, are defined in
that Article; and
(7) the following terms shall have the following meanings:
"Act" when used with respect to any Securityholder has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified 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.
2
<PAGE> 12
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate and deliver Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place.
"Bearer Security" means any Security that is not a Registered
Security.
"Board of Directors" means the Board of Directors of the Company or
any committee of that Board duly authorized to act for it hereunder.
"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.
"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, regulation or executive
order to close.
"capital stock" means stock of any class of a corporation.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"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.
"Company" means the corporation named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the
3
<PAGE> 13
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Funded Debt" means the Funded Debt of the Company and
its Restricted Subsidiaries, as consolidated and determined in accordance with
generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 3.10(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any Currency
unit (or composite Currency) other than the ECU for the purposes for which it
was established.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Security.
"Currency" means any currency or currencies, composite currency or
composite currencies, or currency unit or currency units, including, without
limitation, the ECU, issued by the government of one or more countries or by any
recognized confederation or association of such governments.
"Defaulted Interest" has the meaning specified in Section 3.07(a).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 3.01 until a successor Depositary
shall
4
<PAGE> 14
have become such as provided pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person which
is then a Depositary hereunder with respect to any Securities of such series. If
at any time there is more than one such Person which is then a Depositary with
respect to the securities of any series, "Depositary" as used with respect to
any Securities of such series shall mean each Person which is then a Depositary
with respect to such Securities.
"Designated Currency" has the meaning specified in Section 5.16.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or Currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or any successor thereof, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 3.04(b).
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 3.01, a New York Clearing House bank, designated pursuant to Section
3.01 or Section 3.11.
"Exchange Rate Officer's Certificate" means a tested telex,
telecopier notice or certificate setting forth (i) the applicable Market
Exchange Rate and (ii) the Dollar
5
<PAGE> 15
or Foreign Currency amounts of principal (and premium, if any) and interest, if
any (on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 3.02 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex or telecopier
notice) or signed (in the case of a certificate) by the Treasurer, any Vice
President or any Assistant Treasurer of the Company.
"Foreign Currency" means any Currency other than Currency of the
United States.
"Funded Debt" of any corporation means, at any date of computation,
all indebtedness for money borrowed of such corporation which by its terms
matures more than 12 months after such date or which is extendible or renewable
at the option of the obligor on such indebtedness to a time more than 12 months
after such date; provided, however, that (i) Funded Debt shall include all
obligations in respect of lease rentals which, under generally accepted
accounting principles, appear on a balance sheet of the obligor as a liability
item other than a current liability, (ii) in the case of the Company, Funded
Debt shall not include Subordinated Debt, and (iii) outstanding preferred stock
of a Restricted Subsidiary that is not owned by the Company or a Wholly-owned
Restricted Subsidiary shall be deemed to constitute a principal amount of Funded
Debt equal to the par value or involuntary liquidation value, whichever amount
is higher, of such preferred stock.
"Global Security" means, with respect to any series of Securities
issued hereunder, a Security, which may be a Registered Security or a Bearer
Security, executed by the Company and authenticated and delivered by the Trustee
pursuant to Section 3.03, which shall represent, and shall be denominated in an
amount equal to the aggregate principal amount of, all of the Outstanding
Securities of such series or a portion thereof having the same terms, including,
without limitation, the same date or dates on which principal is due, the same
interest rate or method of determining interest and, in the case of Original
Issue Discount Securities, the same issue price (except that such Outstanding
Securities of such series or portion thereof need not have the same issue date)
and which shall be a temporary Global Security or a Permanent Global Security.
"Holder" or "Securityholder" when used with respect to a Registered
Security, means the Person in whose
6
<PAGE> 16
name such Security is registered on the Security Register and, when used with
respect to a Bearer Security, means the bearer thereof and when used with
respect to any coupon, means the bearer thereof.
"indebtedness" of any corporation shall include all indebtedness, as
determined in accordance with generally accepted accounting principles, created,
incurred or assumed by such corporation or guaranteed by such corporation or
indebtedness for which it is otherwise liable (such as by agreement to purchase
indebtedness of, or to supply funds to or invest in, others), all amounts owing
by such corporation under purchase money mortgages or other purchase money liens
or conditional sale or other title retention agreements, and all indebtedness
secured by any mortgage, security interest, pledge, lien or encumbrance upon
property owned by such corporation, even though such corporation has not assumed
or become liable for the payment of such indebtedness; provided, that, in
computing the "indebtedness" of any corporation, there shall be excluded any
particular indebtedness if, upon or prior to the maturity thereof, there shall
have been deposited with the proper depository in trust money (or evidences of
indebtedness if permitted by the instrument creating such indebtedness) in the
necessary amount to pay, redeem or satisfy such indebtedness, and thereafter
such money and evidences of indebtedness so deposited shall not be included in
any computation of the assets of such corporation.
"Indexed Security" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, or
Securities or Currencies as specified pursuant to Section 3.01.
"interest" when used with respect to a non-interest bearing Security
means interest payable after Maturity.
"Interest Payment Date" with respect to any Security means the
Stated Maturity of an installment of interest on such Security.
"mandatory sinking fund payment" has the meaning specified in
Section 12.01.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section
7
<PAGE> 17
3.01, (i) for any conversion involving a Currency unit on the one hand and
Dollars or any Foreign Currency on the other, the exchange rate between the
relevant Currency unit and Dollars or such Foreign Currency calculated by the
method specified pursuant to Section 3.01 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon
buying rate for such Foreign Currency for cable transfers quoted in New York
City as certified for customs purposes by the Federal Reserve Bank of New York
and (iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the Foreign
Currency from which conversion is being made from major banks located in either
New York City or London or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the Exchange Rate Agent.
Unless otherwise specified with respect to any Securities pursuant to Section
3.01, in the event of the unavailability of any of the exchange rates provided
for in the foregoing Clauses (i), (ii) and (iii), the Exchange Rate Agent shall
use, in its sole discretion and without liability on its part, such quotation of
the Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in New York City or London or any other
principal market for such Currency or Currency unit in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any Currency or Currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such Currency or
Currency unit shall be that upon which a nonresident issuer of securities
designated in such Currency or Currency unit would purchase such Currency or
Currency unit in order to make payments in respect of such securities.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an
8
<PAGE> 18
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal counsel, who
may (except as otherwise expressly provided in this Indenture) be counsel for
the Company and who shall be reasonably acceptable to the Trustee.
"optional sinking fund payment" has the meaning specified in Section
12.01.
"Original Issue Discount Security" means any Security that 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 5.02.
"Outstanding" when used with respect to Securities of any series
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities of such series theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities of such series 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 in accordance with Section 4.01; provided, 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 4.03; and
(iv) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture;
9
<PAGE> 19
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (a) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for such
purposes 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 5.02, (b) the principal amount of a Security
denominated in a Foreign Currency or Currencies that shall be deemed to be
Outstanding for such purposes shall be the Dollar equivalent of the principal
amount (or, in the case of a Security that is an Original Issue Discount
Security or Indexed Security, the principal amount deemed to be Outstanding
pursuant to Clause (a) above or Clause (c) below of this proviso) of such
Security (or, as the case may be, any Predecessor Security) determined upon
original issuance thereof as provided pursuant to Section 3.01(3) with respect
to the Securities of such series, (c) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance unless
otherwise provided with respect to such Security pursuant to Section 3.01 and
(d) Securities of such series owned by the Company or any other obligor upon
such Securities or any Affiliate of the Company or 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 or waiver, only Securities which the
Trustee 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 such Securities or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Securities on
behalf of the Company.
10
<PAGE> 20
"Permanent Global Security" means a permanent Global Security
representing Securities of a series or a portion thereof.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means a city or any political subdivision thereof
designated as such as provided in Section 3.01.
"Predecessor Securities" 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 3.06 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"preferred stock" as applied to the stock of any corporation means
any class of stock of such corporation which has a preference in respect of
dividends or other distributions of assets, or in respect of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution and winding
up of such corporation, over any class of stock of such corporation.
"Principal Property" means any real property (including buildings
and other improvements) of the Company or any Restricted Subsidiary whether
currently owned or hereafter acquired (other than any property hereafter
acquired for the control or abatement of atmospheric pollutants or contaminants
or water, noise, odor or other pollution, or for purposes of developing a
cogeneration facility or a small power production facility as such terms are
defined in the Public Utility Regulatory Policies Act of 1978, as amended) which
(i) has, at any date of determination, a book value in excess of 5% of
Shareowners' Equity and (ii) in the opinion of the Board of Directors is of
material importance to the total business conducted by the Company and its
Restricted Subsidiaries as a whole.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
11
<PAGE> 21
"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.
"Registered Security" means any Security registered on the
Security Register.
"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 provided in Section 3.01.
"Remarketing Entity" when used with respect to Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity means any person designated by the Company to purchase any such
Securities.
"Repayment Date" when used with respect to any Security to be repaid
upon exercise of an option for repayment by the Holder means the date fixed for
such repayment pursuant to this Indenture.
"Repayment Price" when used with respect to any Security to be
repaid upon exercise of an option for repayment by the Holder means the price at
which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice-president (however titled), the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or assistant controller or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Sale and Lease-Back Transaction" has the meaning specified in
Section 10.06.
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"Secured Debt" means indebtedness for money borrowed by the Company
or a Restricted Subsidiary (other than indebtedness owed by a Restricted
Subsidiary to the Company, by a Restricted Subsidiary to another Restricted
Subsidiary or by the Company to a Restricted Subsidiary), which is secured by
(a) a mortgage or other lien on any Principal Property of the Company or a
Restricted Subsidiary, or (b) a pledge, lien or other security interest on any
shares of stock or indebtedness of a Restricted Subsidiary. The amount of
Secured Debt at any time outstanding shall be the amount then owing thereon by
the Company or a Restricted Subsidiary.
"Securities" has the meaning stated in the second paragraph 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 3.05.
"Shareowners' Equity" means, at any date of computation, the
aggregate of capital stock, capital surplus and earned surplus, after deducting
the cost of shares of capital stock of the Company held in its treasury, of the
Company and its Restricted Subsidiaries, as consolidated and determined in
accordance with generally accepted accounting principles.
"Special Record Date" for the payment of any Defaulted Interest
means the date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Debt" means any unsecured indebtedness of the Company
which: (1) has a final maturity subsequent to the latest final Maturity of the
Outstanding Securities of any series; (2) does not provide for mandatory payment
or retirement prior to said date, whether by means of serial maturities or
sinking fund or other analogous provisions or plan, fixed or contingent,
requiring, or which on the happening of a contingency may require, the payment
or retirement of such indebtedness in amounts which as of any particular time
would aggregate more than such portion of the original principal amount thereof
as is obtained by
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multiplying such original principal amount by a fraction the numerator of which
shall be the number of months elapsed from the date of creation of such
indebtedness to such time and the denominator of which shall be the number of
months from the date of creation thereof to the final maturity thereof; and (3)
is expressly made subordinate and junior in right of payment to the Securities
and such other indebtedness of the Company (except other Subordinated Debt) as
may be specified in the instruments evidencing the Subordinated Debt or the
indenture or other similar instrument under which it is issued (which indenture
or other instrument shall be binding on all holders of such Subordinated Debt).
"Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own outstanding shares of capital stock having voting power
sufficient to elect, under ordinary circumstances (not dependent upon the
happening of a contingency), a majority of the directors.
"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 such successor Trustee.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as in force at the date as of which this Indenture was executed, except as
otherwise provided in Section 9.05.
"United States" means the United States of America (including the
District of Columbia) and its possessions and territories and other areas
subject to its jurisdiction (including the Commonwealth of Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands).
"United States Alien" means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
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"Unrestricted Subsidiary" means (a) any Subsidiary which, in
accordance with the provisions of this Indenture, has been designated by the
Company as an Unrestricted Subsidiary, unless and until such Subsidiary shall,
in accordance with the provisions of this Indenture, be designated by the
Company as a Restricted Subsidiary; and (b) any corporation of which any one or
more Unrestricted Subsidiaries directly or indirectly own outstanding shares of
capital stock having voting power sufficient to elect, under ordinary
circumstances (not dependent upon the happening of a contingency), a majority of
the directors.
"Valuation Date" has the meaning specified in Section 3.10(c).
"Wholly-owned Restricted Subsidiary" means a Restricted Subsidiary
all of the outstanding capital stock of which, other than directors' qualifying
shares, and all of the Funded Debt of which, shall at the time be owned by the
Company or by one or more Wholly-owned Restricted Subsidiaries, or by the
Company in conjunction with one or more Wholly-owned Restricted Subsidiaries.
"Yield to Maturity" when used with respect to an Original Issue
Discount Security means the yield to Maturity on such Security calculated at the
time of issuance thereof, or, if applicable, at the most recent redetermination
of interest on such Security, and calculated in accordance with either the
constant interest method or such other accepted financial practice as is
specified in the terms of such Security established pursuant to Section 3.01.
Section 1.02. 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 an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that 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, no additional certificate or
opinion need be furnished.
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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 1.03. 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, or, insofar as it relates to accounting matters,
upon a certificate or opinion of, or representations by, independent public
accountants, 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
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of, or representations by, an officer or officers of the Company stating that
the information with respect to such factual matters is in 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 1.04. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Securityholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by agent
duly appointed in writing. If Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Securityholders may, alternatively, be embodied in and evidenced by
the record of Securityholders voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Securityholders duly called
and held in accordance with the provisions of Article Thirteen, or a combination
of such instrument or instruments and any such record. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments or so voting at any such meeting. 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
6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Securityholders shall be
proved in the manner provided in Section 13.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by
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(i) the affidavit of a witness of such execution or by (ii) the certificate of
any 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 person
acting in 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 ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be proved
by the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities in the amount and with the
serial numbers therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may also be
proved in any other manner which the Company and the Trustee deem sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every subsequent
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done or suffered or omitted to be done by the Trustee, any Security
Registrar, any
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Paying Agent, any Authenticating Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided, that, no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
Section 1.05. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Securityholders 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 Securityholder 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 principal corporate trust office,
or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose
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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 or at any other address previously furnished in writing to
the Trustee by the Company.
Section 1.06. Notices to Securityholders; Waiver.
Where this Indenture provides for notice to Securityholders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) (a) to Holders of Registered Securities, if in writing and
mailed, first-class, postage prepaid, to each Holder of Registered Securities
affected by such event, at such Holder's address as it appears on the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice and (b) except as otherwise
specified with respect to any Securities pursuant to Section 3.01, to Holders of
Bearer Securities, if published in an Authorized Newspaper in the City of New
York and, if the Securities of such series are then listed on the International
Stock Exchange of the United Kingdom and the Republic of Ireland and such stock
exchange shall so require, in London, and, if the Securities of such series are
then listed on the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg, and, if the Securities of such series are then listed on
any other stock exchange outside the United States and such stock exchange shall
so require, in any other required city outside the United States or, if not
practicable, in Europe, on a Business Day at least twice, the first such
publication to be not later than the latest date and not earlier than the
earliest date prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of such publication or, if published more
than once, on the date of the first publication.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
prescribed herein shall be conclusively deemed to have been given to such Holder
whether or not received by
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such Holder. In case, by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible or impracticable to give
notice to Holders of Registered Securities by mail, then such notification as
shall be made with the approval of the Trustee shall constitute sufficient
notification to Holders for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
in an Authorized Newspaper or Authorized Newspapers as required by this
Indenture, then such method of publication or notification to Holders of Bearer
Securities as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice. Neither the failure to give notice by
publication, nor any defect in any notice so given, to any particular Holder of
a Bearer Security as provided herein shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice given to Holders of Registered Securities as provided herein.
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 Securityholders 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.
Section 1.07. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts
with another provision hereof which is required to be included in this Indenture
by any of the provisions of TIA, such required provision shall control.
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Section 1.08. 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 1.09. 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 of any
series or in any coupons appertaining thereto 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 or in any coupons
appertaining thereto, express or implied, shall give to any Person, other than
the parties hereto, any Authentication Agent, any Paying Agent, any Security
Registrar and their successors hereunder and the Securityholders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing Law.
This Indenture and the Securities and any coupons appertaining
thereto shall be governed by and construed in accordance with the internal laws
of the State of New York, without regard to its conflicts of law principles.
Section 1.13. Payments Due on Non-Business Days.
If any Stated Maturity, Redemption Date, Repayment Date, Interest
Payment Date or other day on which payment of any principal, premium or interest
is required to be made in respect of a Security of any series shall not be a
Business Day with respect to the Securities of such series, then
(notwithstanding any other provision of this Indenture or of such Security or
any coupon appertaining thereto) payment of the principal (and premium, if any)
and interest, if any,
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otherwise due in respect of such Security need not be made at such Stated
Maturity or on such Redemption Date, Repayment Date, Interest Payment Date or
other day, as the case may be, but may be made on the next succeeding Business
Day with the same force and effect as if made at such Stated Maturity or on such
Redemption Date, Repayment Date, Interest Payment Date or other day, as the case
may be, and no interest shall accrue for the period from and after such Stated
Maturity, Redemption Date, Repayment Date, Interest Payment Date or other day,
as the case may be.
ARTICLE TWO
FORMS OF SECURITIES
Section 2.01. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and the coupons, if any, appertaining thereto
shall be in substantially the form or forms (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution (and
set forth in a Board Resolution or, to the extent established pursuant to rather
than set forth in such Board Resolution, in an Officers' Certificate as to such
establishment) or in one or more supplemental indentures 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 any law or with any rules or
regulations pursuant thereto, or with the rules of any securities exchange, or
as may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of such Securities or
coupons.
The Securities of each series shall be issuable as Registered
Securities without coupons or as Bearer Securities with or without coupons.
Unless otherwise specified with respect to the Securities of a series as
contemplated by Section 3.01, Bearer Securities (other than Global Securities)
will have coupons attached and Bearer Securities that are Global Securities will
not have coupons attached. Registered Securities and Bearer Securities of a
series may, to the extent specified with respect to the
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<PAGE> 33
Securities of such series, as contemplated by Section 3.01, be issued as Global
Securities.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities and coupons, as evidenced by their
execution of such Securities and coupons.
Section 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's Certificate of Authentication on all Securities shall
be substantially in the following form:
"CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
____________________________________
, as Trustee
By _________________________________
Authorized Officer"
Section 2.03. Global Securities.
If the Securities of or within a series are issuable as a Global
Security, such Global Security may provide that it shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent Outstanding Securities of such series from time
to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Global Security to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee and in such manner as shall be
specified in such Global Security. Any instructions by the Company with respect
to a Global Security, after its initial issuance, shall be in
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<PAGE> 34
writing but need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel.
Unless otherwise provided with respect to the Securities of any
series in accordance with Section 3.01, payment of principal of (and premium, if
any, on) a Permanent Global Security of such series shall be made to each of
Euroclear and CEDEL with respect to the portion of such Permanent Global
Security held for its account by the Depositary. Each of Euroclear and CEDEL
will in such circumstances credit the payment of principal (or premium, if any)
received by it in respect of such Permanent Global Security to the accounts of
the beneficial owners thereof. Payment of interest, if any, on such Permanent
Global Security shall be made as provided in Section 3.07.
The provisions of the last sentence of the last paragraph of Section
3.03 shall apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Company and the Company delivers
to the Trustee the Security in global form together with written instructions
(which need not comply with Section 1.02 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of the last paragraph of Section 3.03.
Notwithstanding the provisions of Section 3.08 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a Permanent Global Security (i) in the
case of a Permanent Global Security in registered form, the Holder of such
Permanent Global Security in registered form, or (ii) in the case of a Permanent
Global Security in bearer form, Euroclear or CEDEL.
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ARTICLE THREE
THE SECURITIES
Section 3.01. 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 at any time and from time to time in
one or more series. There shall be established in or pursuant to one or more
Board Resolutions, and set forth in an Officers' Certificate, or (at the
Company's option) established in one or more supplemental indentures hereto,
prior to the issuance of Securities of any series, any or all of the following,
as applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(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 Sections 3.04, 3.05, 3.06, 9.06,
11.08 or 14.03 and except for any Securities which, pursuant to Section
3.03, are deemed never to have been authenticated and delivered
hereunder);
(3) if the Securities of the series are not denominated in Dollars,
the Foreign Currency or Foreign Currencies in which such Securities are
denominated, the manner in which the Dollar equivalent of the principal
amount of each such Security is to be determined upon original issuance
and, if any payment of principal of (or premium, if any) or interest, if
any, on or any other amount in respect of the Securities of the series is
not payable in Dollars, the Foreign Currency or Foreign Currencies in
which such payment shall be payable and the particular provisions
applicable thereto;
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(4) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of (and premium, if
any, on) 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 by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or
the method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date or dates
shall be determined and the manner of computing interest, if any, if other
than as specified in the last paragraph of Section 3.07;
(6) the place or places where, subject to Section 10.02, the
principal of (and premium, if any) and interest, if any, on Securities of
the series shall be payable, any Registered Securities of the series may
be surrendered for registration of transfer, Securities of the series may
be surrendered for exchange and notices and demands to or upon the Company
in respect of the Securities of the series and this Indenture may be
served and where notices to Holders pursuant to Section 1.06 will be
published;
(7) the period or periods within which, the price or prices at
which, the Foreign Currency or Foreign Currencies, if any, in which and
the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, pursuant to
any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem or purchase
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, the Foreign Currency or
Foreign Currencies, if any, in which and the terms and conditions upon
which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Registered Securities of the series
shall be issuable;
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and the denominations in which Bearer Securities of such series shall be
issuable if other than $10,000 and any integral multiple thereof;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
5.02 or the method by which such portion shall be determined;
(11) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether Bearer
Securities of the series are to be issuable with or without coupons or
both, whether and the terms upon which Bearer Securities of the series may
be exchanged for Registered Securities of the series, if other than as
provided herein, and, in the case of Bearer Securities (or any temporary
Global Security representing the same), the date as of which such Bearer
Securities shall be dated if other than the date of original issuance of
the first Security of such series of like tenor and term to be issued;
(12) whether the Securities of the series shall be issued in whole
or in part in the form of a Global Security or Securities and, in such
case, the Depositary for such Global Security or Securities, whether such
global form shall be permanent or temporary and, if so, whether beneficial
owners of interests in any such Permanent Global Security may exchange
such interests for Securities of such series in certificated form and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in this Article Three, and, if applicable, the Exchange Date;
(13) whether and under what circumstances, and the terms and
conditions on which, the Company will pay additional amounts on the
Securities of the series in respect of any tax, assessment or governmental
charge withheld or deducted and whether the Company will have the option
to redeem such Securities rather than pay such additional amounts or to
redeem such Securities in the event of the imposition of any
certification, documentation, information or other reporting requirement
and, if so, under what circumstances and
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the terms and conditions on which the Company may exercise such option;
(14) if the amount of payments of principal of (or premium, if any)
or interest, if any, on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(15) the Person to whom any interest, if any, on any Registered
Security of the series shall be payable, if other than the Person in whose
name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest
payment, the manner in which, or the Person to whom, any interest, if any,
on any Bearer Security of the series shall be payable, if other than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary Global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 3.04;
(16) any Events of Default or covenants other than as set forth
herein with respect to the Securities of the series;
(17) the application, if any, of Section 4.03 or Section 10.09 to
the Securities of the series;
(18) the designation of the initial Exchange Rate Agent, if any;
(19) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable;
(20) the Trustee with respect to the series, if other than the
Trustee named in this Indenture and the identity of each Authenticating
Agent, Security Registrar and/or Paying Agent, if other than the Trustee;
and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Securities of any one series and the coupons, if any,
appertaining to any Bearer Securities of such series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such supplemental indenture hereto. Securities of any particular
series may be issued at various times, with different dates on which the
principal or any installment of principal is payable, with different rates of
interest, if any, or different methods by which rates of interest may be
determined, with different dates on which such interest may be payable and with
different Redemption or Repayment Dates and may be denominated in different
Currencies or payable in different Currencies.
Prior to the issuance of Securities of any series the Trustee shall
have received and (subject to Section 6.01) shall be fully protected in relying
upon:
(a) the Board Resolution, Officers' Certificate or supplemental
indenture hereto establishing the form of the Securities of the series
pursuant to Section 2.01 and the terms of the Securities of the series
pursuant to this Section;
(b) an Officers' Certificate; and
(c) an Opinion of Counsel stating:
(i) that the form or forms of the Securities of the series
and any coupons appertaining thereto has been established by or
pursuant to a Board Resolution or by a supplemental indenture hereto
as provided by Section 2.01 in conformity with the provisions of
this Indenture;
(ii) that the terms of the Securities of the series and any
coupons appertaining thereto have been established by or pursuant to
a Board Resolution or by a supplemental indenture hereto as provided
by this Section in conformity with the provisions of this Indenture;
(iii) that the Securities of the series and the coupons, if
any, appertaining thereto, 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
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<PAGE> 40
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles
and except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Securities denominated
other than in Dollars (or a Foreign Currency or Currency unit
judgment in respect of such claim) be converted into Dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or Currency
units or payments outside the United States; and
(iv) that all laws and requirements in respect of the
execution and delivery by the Company of the Securities of the
series and the coupons, if any, appertaining thereto have been
complied with and that authentication and delivery of the Securities
of the series and any coupons appertaining thereto by the Trustee
will not violate the terms of the Indenture.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such series and the coupons, if any, appertaining
thereto
(i) if the Trustee, being advised by counsel, determines that
such action may not lawfully be taken;
(ii) if the Trustee in good faith by its board of directors or
trustees, executive committee or a trust committee of directors or
trustees and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any
outstanding series of Securities; or
(iii) if the issue of the Securities of such series pursuant
to this Indenture will affect the Trustee's own rights, duties and
immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
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Notwithstanding the provisions of this Section 3.01 and Section
3.03, if all the Securities of any series are not to be originally issued at one
time, it shall not be necessary to deliver any Board Resolution, Officers'
Certificate or Opinion of Counsel otherwise required pursuant to this Section or
Section 3.03, prior to or at the time of authentication of each Security of such
series if such documents are delivered prior to or at the time of authentication
upon original issuance of the first Security of such series to be issued.
Section 3.02. Denominations.
Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Security for such series
approved or established pursuant to Section 2.01 or in the Officers' Certificate
delivered pursuant to Section 3.01. In the absence of any specification with
respect to the Securities of any series, the Registered Securities of such
series, if any (other than Registered Securities in global form, which may be in
any denomination), shall be issuable in denominations of $1,000 and any integral
multiples thereof and the Bearer Securities of such series, if any (other than
Bearer Securities in global form, which may be in any denomination), shall be
issuable in denominations of $10,000 and any integral multiple thereof.
Section 3.03. Execution, Authentication and Delivery.
The Securities and coupons, if any, shall be executed on behalf of
the Company by its Chairman of the Board of Directors or its President or any
Vice President in each case under its corporate seal reproduced thereon, which
corporate seal may be attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities or coupons
may be manual or facsimile and may be imprinted or otherwise reproduced on the
Securities or coupons. The corporate seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities or the coupons. Notwithstanding the foregoing, any
temporary Global Security may be executed on behalf of the Company as provided
herein without any necessity of being under its corporate seal as aforesaid.
Securities and coupons appertaining thereto bearing the manual or
facsimile signatures of individuals
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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 coupons
or did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities, together with any coupons
appertaining thereto, 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 deliver such Securities; provided, however, that, in connection
with its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that,
unless otherwise specified with respect to any series of Securities pursuant to
Section 3.01, a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
furnished a certificate substantially in the form set forth in Exhibit A-1 to
this Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 3.01, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Global Security or any Permanent Global Security
first becomes exchangeable for such Bearer Security in accordance with the terms
of such temporary Global Security or Permanent Global Security and this
Indenture. If all the Securities of any one series are not to be issued at one
time and if a Board Resolution or indenture supplemental hereto relating to the
Securities of such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities,
including, without limitation, procedures with respect to date of issue, Stated
Maturity, rate of interest, if any, and date from which interest, if any, shall
accrue as determined by the Company as contemplated by Section 3.01. In
authenticating and delivering 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 6.01) shall be
fully protected in relying upon, an Opinion of Counsel as provided in Section
3.01.
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<PAGE> 43
If the Company shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and Section 3.04, if and to the extent
applicable, and the Company Order with respect to such series, authenticate and
deliver one or more Global Securities in permanent or temporary form that (i)
shall represent and shall be denominated in an aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more Global
Securities, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or the nominee of such Depositary and (iii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions.
Unless otherwise specified with respect to the Securities of a
series as contemplated by Section 3.01, each Person designated pursuant to
Section 3.01 as a Depositary for a Global Security in registered form, at the
time of its designation and at all times while it serves as Depositary, shall be
a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
Each Registered Security (including a Global Security) shall be
dated the date of its authentication. Each Bearer Security of a series
(including a Global Security) shall be dated as of the date of original issuance
of the first Security of such series to be issued except as otherwise
established in or pursuant to the Board Resolution or indenture supplemental
hereto referred to in Section 3.01 relating to the Securities of such series.
No Security or coupon, if any, appertaining thereto 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
delivered hereunder. Except as permitted by Section 3.06, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued
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<PAGE> 44
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.09 together with a written
statement (which need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
Section 3.04. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, 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, either as Registered Securities without coupons, or, if authorized,
as Bearer Securities with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of any series of Securities,
such temporary Securities may be issued as a temporary Global Security
representing such of the Outstanding Securities of such series as shall be
specified therein.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay but, in the case of Securities initially represented by a temporary Global
Security, in any event not later than the applicable Exchange Date. Except in
the case of temporary Global Securities (which shall, except as otherwise
specified with respect to the Securities of such series pursuant to Section
3.01, be exchanged in accordance with the provisions of Subsection (b) of this
Section), 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 maintained pursuant to Section
10.02 at a Place of Payment with respect to Securities of such series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining
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thereto) the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations and of a like Stated Maturity, with like
terms and provisions, and in the case of Bearer Securities, having attached
thereto any appropriate coupons; provided, however, that, unless otherwise
specified with respect to the Securities of such series pursuant to Section
3.01, no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 3.03, this Section 3.04 and
Section 3.05. 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 with like terms and conditions authenticated and
delivered hereunder, except as otherwise specified with respect to the
Securities of such series pursuant to Section 3.01 or as provided in Subsection
(b) of this Section as to payment of interest, if any.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 3.04(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary Global Security shall, unless otherwise provided therein, be
delivered to the London office of a Depositary, for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary Global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Company. On or after
the Exchange Date, such temporary Global Security shall be surrendered by the
Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary Global Security to be
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exchanged. The definitive Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 3.01, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Depositary, such temporary Global Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary Global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary Global
Security held for its account then to be exchanged, each substantially in the
form set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 3.01; and provided, further, that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
Global Security only in compliance with the requirements of Section 3.03, this
Section 3.04 and Section 3.05.
Unless otherwise specified in such temporary Global Security, the
interest of a beneficial owner of Securities of a series in a temporary Global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate
substantially in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 3.01), dated no earlier
than 15 days prior to the Exchange Date, copies of which certificate shall be
available from the officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary Global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
Global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary Global Security shall be delivered only
outside the United States.
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Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.01, interest payable on a temporary
Global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in substantially the form set forth
in Exhibit A-2 to this Indenture (or in such other forms as may be established
pursuant to Section 3.01), for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary Global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL, as the case may be, a
certificate dated no earlier than 15 days prior to the Interest Payment Date
occurring prior to such Exchange Date in substantially the form set forth as
Exhibit A-1 to this Indenture (or in such other form as my be established
pursuant to Section 3.01). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section and
of Section 3.03(b) and the interests of the Persons who are the beneficial
owners of the temporary Global Security with respect to which such certification
was made will be exchanged for definitive Securities of the same series and of
like tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal (or
premium, if any) or interest, if any, owing with respect to a beneficial
interest in a temporary Global Security will be made unless and until such
interest in such temporary Global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
CEDEL and not paid as herein provided shall be returned to the Trustee prior to
the expiration of 2 years after such Interest Payment Date in order to be repaid
to the Company.
Section 3.05. Registration, Registration of Transfer and Exchange.
With respect to each series of Securities which are Registered
Securities, the Company shall cause to be
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kept at one of the offices or agencies maintained by the Company pursuant to
Section 10.02, a register (herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Registered Securities of such
series and the registration of transfers of Registered Securities of such
series. Said office or agency is hereby initially appointed "Security Registrar"
for the purpose of registering Registered Securities of such series and
transfers of Registered Securities of such series as herein provided. The
Company may from time to time change the place at which the Security Register
shall be kept. The Trustee shall have the right to examine the Security Register
for each series at any time during normal business hours.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency of the Company in a Place of
Payment for such series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of such series of any
authorized denominations, of like tenor and terms and aggregate principal
amount.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of such series of any authorized
denominations, of like tenor and terms and aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Securityholder making the exchange is entitled to receive.
Unless otherwise specified pursuant to Section 3.01, Bearer Securities may not
be issued in exchange for Registered Securities.
At the option of the Holder, Registered Securities or Bearer
Securities of any series may be issued in exchange for Bearer Securities (except
as otherwise specified as contemplated by Section 3.01 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency with all
unmatured coupons and all matured coupons in default appertaining thereto. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or
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matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 10.02, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor and terms after the close
of business at such office or agency of (i) any Regular Record Date and before
the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Securityholder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 3.01, any Permanent Global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a Permanent Global Security is entitled to exchange such interest
for definitive Securities of such series, as specified with respect to the
Securities of such series pursuant to Section 3.01 and provided that any
applicable notice provided in the Permanent Global Security shall have been
given, then without unnecessary delay but in any event
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not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such Permanent Global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such Permanent
Global Security shall be surrendered by the Depositary or such other depositary
as shall be specified in the Company Order with respect thereto to the Trustee,
as the Company's agent for such purpose, to be exchanged, in whole or from time
to time in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver in accordance with instructions from the applicable
depositary (including instructions as to the registration of Registered
Securities), in exchange for each portion of such Permanent Global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such Permanent
Global Security to be exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
specified as contemplated by Section 3.01, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof or shall, if the Securities of such
series are issuable only as Registered Securities or only as Bearer Securities,
be definitive Registered Securities or definitive Bearer Securities, as the case
may be; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date, if the Security for
which exchange is requested may be among those selected for redemption; and
provided, further, that no Bearer Security delivered in exchange for a portion
of a Permanent Global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a Permanent Global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or
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proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such Permanent Global Security is payable
in accordance with the provisions of this Indenture.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee.
If at any time the Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Securities of such series or if at any time the Depositary for the
Securities of such series shall no longer be eligible under the fifth paragraph
of Section 3.03, the Company shall appoint a successor Depositary for the
Securities of such series. If a successor Depositary for the Securities of such
series is not appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company's election
pursuant to Section 3.01 shall no longer be effective with respect to the
Securities of such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such series
in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 3.01 with respect to
a series of Securities, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange in whole
or in part for Securities of such series of like tenor and terms and in
definitive form on such terms as are
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acceptable to the Company and such Depositary. Thereupon, the Company shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Security or
Securities of the same series, of like tenor and terms and of any
authorized denominations as requested by such Person in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and terms
and in an aggregate principal amount equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee will authenticate and
deliver Securities (a) in definitive registered form in authorized
denominations, if the Securities of such series are issuable as Registered
Securities, (b) in definitive bearer form in authorized denominations, with
coupons attached, if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, as shall be
specified by the beneficial owner thereof, if the Securities of such series are
issuable in either form; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Global Security unless the
Company or its agent shall have received from the Person entitled to receive the
definitive Bearer Security a certificate substantially in the form set forth in
Exhibit A-1 and, if applicable, A-2 hereto; and provided, further, that delivery
of a Bearer Security shall occur only outside the United States; and provided,
further, that no definitive Bearer Security will be issued if the Company has
reason to know that any such certificate is false.
All Securities issued upon any registration of transfer or exchange
of Securities shall be 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 Registered Security presented or surrendered for registration
of transfer or exchange shall (if so
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required by the Company, the Security Registrar 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 the Holder's 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 transfer, registration of transfer or exchange of Securities, other
than exchanges of Securities expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any particular series to be redeemed for a
period beginning at the opening of business 15 days before (A) if Securities of
such series are issuable only as Registered Securities, the day of the mailing
of a notice of redemption of Securities of such series selected for redemption
under Section 11.03 and ending at the close of business on the day of such
mailing and (B) if Securities of such series are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
earlier, and if Securities of such series are also issuable as Registered
Securities and there is no publication, the day of the mailing of the relevant
notice of redemption and in either case ending at the close of business on the
day of such publication or mailing, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of such Registered Security being redeemed in
part, or (iii) to exchange any Bearer Security so selected for redemption except
that such a Bearer Security may be exchanged for a Registered Security of like
tenor and terms of that series, provided, that, such Registered Security shall
be simultaneously surrendered for redemption.
Notwithstanding anything herein to the contrary, the exchange of
Bearer Securities into Registered Securities shall be subject to applicable laws
and regulations in effect at the time of exchange; neither the Company, the
Trustee nor the Security Registrar shall exchange any Bearer Securities into
Registered Securities if it has received an Opinion of Counsel that as a result
of such exchanges the Company would suffer adverse consequences under the United
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States Federal income tax laws and regulations then in effect and the Company
has delivered to the Trustee a Company Order directing the Trustee not to make
such exchanges thereafter unless and until the Trustee receives a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon is
surrendered to a Paying Agent outside the United States or in the case of a
Registered Security, to the Trustee, or if the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and there is delivered to the Company and the Trustee such security
or indemnity as may be required by them to save each of them and their agents
harmless, then, in the absence of notice to the Company or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange therefor (together with all appurtenant coupons not destroyed, lost or
stolen) a new Security of the same series and of like tenor and principal
amount, bearing a number not contemporaneously outstanding with coupons
corresponding to any coupons appertaining to such mutilated, destroyed, lost or
stolen Security; provided, that, any such Bearer Security will be delivered only
in compliance with Sections 3.03, 3.04 and 3.05, as applicable.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, with coupons corresponding to
the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon (without surrender thereof except
in the case of a mutilated Security or coupon) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as may
be required by them to save each of them and any agent of them harmless, and in
the case of destruction, loss or theft, evidence satisfactory to the Company and
the Trustee and any agent of either of them of the destruction, loss or theft of
such Security and the ownership thereof; provided, however, that the principal
of (and premium, if any) and interest, if any,
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on Bearer Securities shall, except as otherwise provided in Section 10.02, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.01, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security or coupon under this Section,
the Company may require the payment 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, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security of
such series or in exchange for any mutilated Security of such series, or in
exchange for a Security to which a mutilated, destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and coupons,
if any, or the destroyed, lost or stolen coupon 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 and their
coupons, if any, 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 or coupons.
Section 3.07. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.
(a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 3.01, interest, if any,
on any Registered 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 such Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose pursuant to
Section 10.02; provided, however, that each installment of interest, if any, on
any Registered Security may at the Company's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of
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the Person entitled thereto pursuant to Section 3.08, to the address of such
Person as it appears on the Security Register or (ii) transfer to an account
maintained by the payee inside the United States.
Unless otherwise provided with respect to the Securities of any
series in accordance with Section 3.01, payment of interest, if any, may be
made, in the case of a Bearer Security, at the Holder's option by (i) check in
the Currency designated for such payment pursuant to the terms of the Bearer
Security presented or mailed to an address outside the United States or (ii)
transfer to an account in such Currency maintained by the payee with a bank
located outside the United States.
Unless otherwise provided with respect to the Securities of any
series in accordance with Section 3.01, every Permanent Global Security of such
series will provide that interest, if any, payable on any Interest Payment Date
will be paid to each of Euroclear and CEDEL with respect to that portion of such
Permanent Global Security held for its account by the Depositary or other
depositary. Each of Euroclear and CEDEL will in such circumstances credit the
interest, if any, received by it in respect of such Permanent Global Security to
the accounts of the beneficial owners thereof.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 3.01, any interest on any
Registered 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 Registered 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 Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered 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 Registered Security of such series and the date of the
proposed payment, and at the same time the Company
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shall deposit with the Trustee an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if
applicable, as provided in Sections 3.10(b), 3.10(d) and 3.10(e)) 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 on or 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 nor 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 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 mailed, first class, postage prepaid, to each Holder of Registered
Securities of such series at such Holder's address as it appears in the
Security Register not less than 10 days prior to such Special Record Date.
The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publication shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered 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).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such proposed date of payment and Defaulted Interest
will
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not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered 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 payment shall be deemed
practicable by the Trustee.
(b) The provisions of this Section 3.07(b) may be made applicable to
any series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 45 but not more
than 60 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 1.06, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is not such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
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applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 1.06, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of any such Security. Such
notice shall be irrevocable. All Securities with respect to which the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Fourteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section 3.07 and Section
3.05, each Security delivered under this Indenture upon 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.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 3.01, interest on the Securities
shall be computed on the basis of a 360-day year of twelve 30-day months.
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Section 3.08. Persons Deemed Owners.
Prior to due presentment for registration of transfer of any
Registered Security, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name any such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Sections 3.05 and
3.07) interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Registered 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.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company or
the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon 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.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary, as a Holder, with respect to
such Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security.
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Section 3.09. Cancellation.
All Securities and coupons surrendered for payment, registration of
transfer, exchange, redemption or for credit against any current or future
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee for cancellation 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 or any coupon
previously 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 Security 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 and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company. In
the case of any temporary Global Security, which shall be destroyed if the
entire aggregate principal amount of the Securities represented thereby has been
exchanged, the certificate of such destruction shall state that all certificates
required pursuant to Section 3.04, substantially in the form of Exhibit A-2, to
be given by Euroclear or CEDEL, have been duly presented to the Trustee by
Euroclear or CEDEL, as the case may be. Permanent Global Securities shall not be
cancelled until exchanged in full for other Permanent Global Securities or
definitive Securities or until payment thereof is made in full.
Section 3.10. Currency and Manner of Payments in Respect of
Securities.
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in paragraph
(d) below, payment of the principal of (and premium, if any) and interest, if
any, on any Registered or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the case may
be,
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is payable. The provisions of this Section may be modified or superseded with
respect to any Securities pursuant to Section 3.01.
(b) It may be provided pursuant to Section 3.01 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
3.01, not later than the close of business on the Election Date (as defined
below) immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment date to
be effective for the payment to be made on such payment date and no such change
of election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Section 10.09 or with respect to which a notice of redemption has been
given by the Company or a notice of option to elect repayment has been sent by
such Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 3.10(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) If the election referred to in paragraph (b) above has been
provided for pursuant to Section 3.01, then, unless otherwise specified pursuant
to Section 3.01, not later than the fourth Business Day after the Election Date
for each payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company
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a written notice specifying the Currency in which Registered Securities of such
series are payable, the respective aggregate amounts of principal of (and
premium, if any) and interest, if any, on the Registered Securities to be paid
on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 3.01 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.01, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies amount receivable by Holders of Registered Securities who
have elected payment in a Currency as provided in paragraph (b) above. Such
amounts shall be determined by the Company on the basis of the applicable Market
Exchange Rate in effect on the second Business Day (the "Valuation Date")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency
in which any of the Securities are denominated or payable other than pursuant to
an election provided for pursuant to paragraph (b) above, then with respect to
each date for the payment of principal of (and premium, if any) and interest, if
any, on the applicable Securities denominated or payable in such Foreign
Currency occurring after the last date on which such Foreign Currency was used
(the "Conversion Date"), the Dollar shall be the Currency of payment for use on
each such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar amount to be paid by the Company to the Trustee for each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a Currency unit, the Dollar Equivalent (as defined below) of
the Foreign Currency or, in the case of a Currency unit, the Dollar Equivalent
of the Currency unit, in each case as determined by the Exchange Rate Agent in
the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.01, if the
Holder of a Registered Security
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denominated in any Currency shall have elected to be paid in another Currency as
provided in paragraph (b) above, and a Conversion Event occurs with respect to
such elected Currency, such Holder shall receive payment in the Currency in
which payment would have been made in the absence of such election; and if a
Conversion Event occurs with respect to the Currency in which payment would have
been made in the absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) of this Section.
(f) "Dollar Equivalent" when used with respect to any Foreign
Currency shall be determined by the Exchange Rate Agent and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) "Dollar Equivalent" when used with respect to any Currency unit
shall be determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount (as defined below) of each Component Currency (as defined
below) into Dollars at the Market Exchange Rate for such Component Currency on
the Valuation Date with respect to each payment.
(h) For purposes of this Section, the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a Component Currency of the relevant Currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant Currency unit, including, but not limited to,
the ECU, on the Conversion Date. If after the Conversion Date the official
unit of any Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after the Conversion Date
two or more Component Currencies are consolidated into a single Currency,
the respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single Currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single Currency, and such
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amount shall thereafter be a Specified Amount and such single Currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more Currencies, the
Specified Amount of such Component Currency shall be replaced by amounts
of such two or more Currencies, having an aggregate Dollar Equivalent
value at the Market Exchange Rate on the date of such replacement equal to
the Dollar Equivalent of the Specified Amount of such former Component
Currency at the Market Exchange Rate immediately before such division, and
such amounts shall thereafter be Specified Amounts and such Currencies
shall thereafter be Component Currencies. If, after the Conversion Date of
the relevant Currency unit, including, but not limited to, the ECU, a
Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component
Currency of such Currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series of
Registered Securities as specified pursuant to Section 3.01 by which the
written election referred to in Section 3.10(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
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In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 1.06 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other Currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 1.06 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 1.06 to the affected
Holders).
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.11. Appointment and Resignation of Successor Exchange Rate
Agent.
(a) Unless otherwise specified pursuant to Section 3.01, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.01 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
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Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 3.10.
(b) No resignation of the Exchange Rate Agent and no appointment of
a successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 3.01, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
Section 3.12. Optional Extension of Maturity.
The provisions of this Section 3.12 may be made applicable to any
series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to Section 3.01). The
Stated Maturity of any Security of such series may be extended at the option of
the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 45 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.06, to the Holder of any such Security not later than
40 days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating
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(i) the election of the Company to extend the Stated Maturity, (ii) the new
Stated Maturity, (iii) the interest rate, if any, applicable to the Extension
Period and (iv) the provisions, if any, for redemption during such Extension
Period. Upon the Trustee's transmittal of the Extension Notice, the Stated
Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 1.06, notice of such higher
interest rate to the Holder of any such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Fourteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
This Indenture upon Company Request shall cease to be of further
effect with respect to any series of
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Securities specified in such Company Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such series when
(1) either
(A) all Securities of such series theretofore authenticated,
issued and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered in exchange for Registered Securities and maturing after
such exchange, the surrender of which is not required or has been
waived as provided in Section 3.05, (ii) any Securities or coupons,
if any, appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.06, (iii) coupons appertaining to Bearer Securities called for
redemption or surrendered for payment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate, the
surrender of which has been waived as provided in Section 11.07 or
Section 14.03, and (iv) Securities and coupons 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 10.03) have been
delivered to the Trustee for cancellation; or
(B) all such Securities of such series and all coupons, if
any, appertaining thereto not theretofore delivered to the Trustee
for cancellation have become due and payable, or will become due and
payable at their Stated Maturity within 1 year, or, if redeemable at
the option of the Company are to be called for redemption within 1
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 has deposited or caused to
be deposited with the Trustee, as trust funds in trust for the
purpose,
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(i) moneys, or
(ii) securities evidencing direct general obligations
of, or obligations the payment of the principal and interest
of which are unconditionally guaranteed by, the United States,
which obligations, or the guaranty of which, constitutes the
full faith and credit obligation of the United States, which
securities shall not be callable at the option of the issuer
and which securities mature and bear interest in such amount
and at such times as will provide moneys, or
(iii) a combination thereof,
in an amount sufficient to pay and discharge the entire indebtedness
on such Securities of such series and the coupons, if any,
appertaining thereto not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, if
any, 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 or any Repayment Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the coupons, if any, appertaining thereto; and
(3) the Company has delivered to the Trustee (i) 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 in respect of such series of Securities and coupons, if
any, have been complied with and (ii) if securities have been deposited
pursuant to Clause (1)(B) of this Section, a certificate of independent
certified public accountants stating that such securities mature and bear
interest in such amount and at such times as will (together with any
moneys otherwise provided pursuant to Clause (1)(B) of this Section)
provide sufficient moneys as provided in Clause (1)(B) of this Section.
Notwithstanding the satisfaction and discharge of this Indenture in
respect of such series of Securities, the
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obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and if moneys or
securities shall have been deposited with the Trustee pursuant to Clause (1)(B)
of this Section, Section 4.03 or Section 10.09, the obligations of the Trustee
under Section 4.02 and the last paragraph of Section 10.03 shall survive.
Section 4.02. Application of Trust Money.
(a) Subject to the provisions of Section 4.02(c) and the last
paragraph of Section 10.03, all money or securities deposited with the Trustee
pursuant to Section 4.01, 4.03 or 10.09 (or the principal of or interest on such
securities) shall be held in trust and applied by the Trustee, in accordance
with the provisions of this Indenture and of such series of Securities and
coupons, if any, to which such money or securities relate, 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 premium, if any) and interest, if any, for whose
payment such money or securities have been deposited with the Trustee or to make
mandatory sinking fund payments or analogous payments as contemplated by Section
4.03 or 10.09, but such money or proceeds need not be segregated from other
funds except to the extent required by law.
(b) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or securities (or the principal of or
interest on such securities) held by it as provided in Section 4.01, 4.03 or
10.09 which, in the opinion of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, are then
in excess of the amount thereof which then would have been required to be
deposited for the purpose for which such money or securities were deposited or
received. The principal of and interest on the securities deposited in trust
pursuant to Sections 4.03(1) and 10.09(1), to the extent that such principal and
interest are not required for a period of time for the payment of the principal
of (and premium, if any) and interest, if any, on the Securities of such series
and the coupons, if any, with respect to which such securities relate, shall, so
far as practicable, be invested by the Trustee in like securities of such
maturities (6 months or less) as necessary to ensure that funds are available to
pay the principal of (and premium, if any) and interest, if any, on such
Securities
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and coupons, if any, and the Trustee, upon receipt thereof, shall pay to the
Company the income from such investments.
Section 4.03. Defeasance and Discharge of Securities of any Series.
(a) If this Section 4.03 has been specified in accordance with
Section 3.01 to be applicable to Securities of any series, then notwithstanding
Section 4.01, the Company shall be deemed to have paid and discharged the entire
indebtedness on all Outstanding Securities of that series and the coupons, if
any, appertaining thereto, the provisions of this Indenture as it relates to
such Outstanding Securities and coupons (except as to the rights of Holders of
Securities of such series and coupons, if any, appertaining thereto, to receive,
solely from the trust fund described in Clause (1) of this Section 4.03(a),
payment of the principal of (and premium, if any) and any installment of
principal of (and premium, if any) or interest, if any, on such Securities on
the Stated Maturity of such principal or installment of principal or interest or
any mandatory sinking fund payments or analogous payments applicable to the
Securities of that series on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Securities, the
Company's obligations with respect to such Securities under Sections 3.05, 3.06,
6.07, 10.02 and 10.03 and the rights, powers, trusts, duties and immunities of
the Trustee hereunder) shall no longer be in effect, and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same, when
(1) with reference to this Section 4.03, the Company has deposited
or caused to be deposited with the Trustee (or another trustee that
satisfies the requirements of Section 6.09 and agrees to comply with the
provisions of this Section 4.03 applicable to it), irrevocably
(irrespective of whether the conditions in Clauses (2), (3), (4) and (5)
below have been satisfied, but subject to the provisions of Section
4.02(b) and the last paragraph of Section 10.03), as trust funds in trust
for the purpose,
(A) moneys, or
(B) securities evidencing direct general obligations of, or
obligations the payment of the principal and interest of which are
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unconditionally guaranteed by, the United States, which obligations,
or the guaranty of which, constitutes the full faith and credit
obligation of the United States, which securities shall not be
callable or redeemable at the option of the issuer and which
securities mature and bear interest in such amount and at such times
as will provide moneys, or
(C) a combination thereof,
in an amount sufficient to pay and discharge the principal of (and
premium, if any) and each installment of principal of (and premium, if
any) and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest, if any, or any mandatory sinking
fund payments or analogous payments applicable to Securities of such
series on the day on which such payments are due and payable in accordance
with the terms of the Indenture and of such Securities and the coupons, if
any, appertaining thereto;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the coupons, if any, appertaining thereto;
(3) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred or be continuing on the
date of such deposit and no Event of Default under Section 5.01(e) or
5.01(f) or an event which with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 5.01(e) or 5.01(f)
shall have occurred and be continuing on the 91st day after such date;
(4) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (B) 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 Holders of the Securities of
such series and the coupons, if any, appertaining thereto will not
recognize income, gain or loss for Federal
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income tax purposes as a result of such deposit, defeasance and discharge
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(5) the Company has delivered to the Trustee (A) 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 in respect of the Securities of such series contemplated
by this Section have been complied with and (B) if securities have been
deposited pursuant to Clause (1) of this Section 4.03(a), a certificate of
independent certified public accountants stating that such securities
mature and bear interest in such amount and at such times as will
(together with any moneys otherwise provided pursuant to Clause (1) of
this Section 4.03(a)) provide sufficient moneys as provided in Clause (1)
of this Section 4.03(a).
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against securities deposited
pursuant to this Section 4.03 or Section 10.09 or the principal of or interest
on such securities other than any payable by or on behalf of the Holders.
ARTICLE FIVE
REMEDIES
Section 5.01. 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):
(a) default in the due and punctual payment of any interest upon any
of the Securities of such series or coupons, if any, appertaining thereto
as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; or
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(b) default in the due and punctual payment of the principal of (and
premium, if any, on) any Securities of such series as and when the same
shall become due and payable at Maturity; or
(c) default in making any mandatory or optional sinking fund payment
provided for in Section 11.01 with respect to Securities of such series as
and when the same shall become due and payable, and continuance of such
default for a period of 5 days; or
(d) failure on the part of the Company to duly observe or perform
any other of the covenants or agreements on the part of the Company in the
Securities of such series or in this Indenture contained (other than a
covenant or agreement 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 a series of
Securities other than such series) for a period of 90 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Securities of such series at the time Outstanding; or
(e) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary
case under the Federal bankruptcy laws, as now constituted or hereafter
amended, or any other applicable Federal or State bankruptcy, insolvency
or other similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company 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 unstayed and in effect for a period of 90 consecutive days; or
(f) the commencement by the Company of a voluntary case under the
Federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable Federal or State bankruptcy, insolvency or other similar
law, or the consent by it to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any
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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 in furtherance of any such action; or
(g) any other Event of Default provided with respect to Securities
of such series.
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal of all the
Securities of such series (or, in the case of Securities of such series that are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal of such Securities as may be specified in the terms thereof) to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Securityholders), and upon any such declaration such
principal (or, as the case may be, such portion thereof) shall become
immediately due and payable.
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 such 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 deposited with the Trustee a sum
sufficient to pay, in the Currency in which the Securities of that series
are payable (except as may otherwise be specified pursuant to Section 3.01
for such series and except as may be provided in Section 3.10, if and to
the extent applicable)
(A) all overdue installments of interest, if any, on all
Outstanding Securities of such series, and the coupons, if any,
appertaining thereto,
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(B) the principal of (and premium, if any, on) any Outstanding
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates borne by such Securities (or, in the case of Securities of
such series that are Original Issue Discount Securities, the Yield
to Maturity in respect thereof),
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest, if any, at the rate
or rates borne by such Securities (or, in the case of Securities of
such series, and the coupons, if any, appertaining thereto that are
Original Issue Discount Securities, the Yield to Maturity in respect
thereof), 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; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of (or premium, if any) or
interest, if any, on Securities of such series which have become due
solely by such 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 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if an Event of Default specified in
Section 5.01(a) or 5.01(b) occurs, the Company will, upon demand of the Trustee,
pay to the Trustee, for the benefit of the Holders of the Securities of such
series and the coupons, if any, appertaining thereto, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, with interest upon the overdue principal (and premium, if
any) and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, if any, at the rate or rates
borne by such Securities (or, in the case of Securities of such series that are
Original Issue Discount Securities, the Yield to
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Maturity in respect thereof); 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 the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and coupons and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
and coupons, wherever situated.
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 the Securities of such
series and the coupons, if any, appertaining thereto 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 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities of any series or the property of the Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium, if
any, or interest, if any) shall be entitled and empowered, by intervention in
such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (or, in the case of Securities of such series that are
Original Issue Discount Securities or Indexed Securities, such
portion of
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the principal of such Securities as may be specified in the terms
thereof) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities of such series and the coupons,
if any, appertaining thereto and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders of the Securities of such
series and the coupons, if any, appertaining thereto allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities of such series and coupons 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 Securityholders, to pay to the Trustee any amount due to 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 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons, if any, appertaining thereto or the rights
of any Holder thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder of a Security or coupon in any such proceeding, provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or the
Securities of any series or the coupons, if any, appertaining thereto may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities
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of any series or the coupons, if any, appertaining thereto 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 and coupons in respect of which such judgment has been recovered.
Section 5.06. 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 premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, 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
6.07;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of any series or the coupons, if any, appertaining thereto for
principal (and premium, if any) and interest, if any, 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 and coupons, for principal (and premium, if any) and interest, if
any, respectively. The Holders of each series of Securities denominated in ECU,
any other composite Currency or a Foreign Currency and any matured coupons
relating thereto shall be entitled to receive a ratable portion of the amount
determined by the Exchange Rate Agent by converting the principal amount
Outstanding of such series of Securities and matured but unpaid interest on such
series of Securities in the Currency in which such series of Securities is
denominated into Dollars at the Exchange Rate as of the date of declaration of
acceleration of the Maturity of the Securities; and
THIRD: The balance, if any, to the Company or any other Person or
Persons entitled thereto.
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Section 5.07. Limitation on Suits.
No Holder of any Security of any series or any coupon appertaining
thereto 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 Securities of such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such 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 such series;
it being understood and intended that no one or more of such Holders of
Securities of any series or coupons, if any, appertaining thereto 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 of Securities or coupons 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 of Securities of such series and coupons, if any,
appertaining thereto.
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Section 5.08. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Section 3.05 or 3.07) interest, if any, on such Security or coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption or repayment, on the Redemption Date or Repayment Date) and
to institute suit for the enforcement of any such payment on and after the
respective Stated Maturities or applicable Redemption Date or Repayment Date and
such right shall not be impaired without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Securityholder, then and in
every such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders of any Security or coupon 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 or coupons in the
last paragraph of Section 3.06, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons 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.
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Section 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon 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 Securityholders.
The Holders of not less than 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 Securities of such series, provided, that,
(1) such direction shall not be in conflict with any rule of law or
this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
This Section 5.12 shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act and such Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
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 and all coupons, if any, appertaining thereto waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or the coupons, if any,
appertaining thereto, or
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(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series or coupons 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.
This Section 5.13 shall be in lieu of Section 316(a)(1)(B) of the
Trust Indenture Act and such Section 316(a)(1)(B) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
Section 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
of any series or any coupon appertaining thereto by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, 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 or omitted by
it as Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of (or premium, if any) or interest, if any, on any
Security of any series or any coupon appertaining thereto on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, or, in the case of repayment, on or
after the Repayment Date).
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
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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.
Section 5.16. Judgment Currency.
The Company may provide, pursuant to Section 3.01, for the
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 3.01,
(a) the obligation, if any, of the Company to pay the principal of (and premium,
if any) and interest, if any, on the Securities of any series and the coupons,
if any, appertaining thereto in a Foreign Currency, composite Currency or
Dollars (the "Designated Currency") as may be specified pursuant to Section 3.01
is of the essence and that judgments in respect of such Securities shall be
given in the Designated Currency; (b) the obligation of the Company to make
payments in the Designated Currency of the principal of (and premium, if any)
and interest, if any, on such Securities and the coupons, if any, appertaining
thereto shall notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) in the country of issue
of the Designated Currency in the case of Foreign Currency or Dollars or in the
international banking community in the case of a composite Currency on the
Business Day immediately following the day of such payment; (c) if the amount in
the Designated Currency that may be purchased falls short of the amount
originally due for any reason, the Company shall pay such additional amounts
needed to compensate for any short-fall; and (d) any obligation of the Company
not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
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ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by Section 315 of the Trust Indenture Act and this Indenture.
(a) Except during the continuance of an Event of Default in respect
of the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default in respect of the Securities of any
series has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
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(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount
of the Outstanding Securities of any series relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to Securities of such series.
(d) No provisions 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 there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) 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 6.02. Notice of Default.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give or transmit, in
the manner and to the extent provided in Section 1.06, to the Holders of
Securities of such series notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series or the making of any
sinking fund payment with respect to Securities of such series when due, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of Securities of
such series; and provided, further, that in the case of any
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default of the character specified in Section 5.01(d) with respect to Securities
of such series no such notice to Holders of Securities of such series shall be
given until at least 90 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 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(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 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 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 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 of Securities of any series and the
coupons, if any, appertaining thereto pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against
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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 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 or omitted
by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
Section 6.04. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities of any series,
except for the certificates of authentication, and in the coupons, if any,
appertaining thereto shall be taken as the statements of the Company, and the
Trustee and any Authentication 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, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
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 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections 6.08 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 6.06. 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
provided in Section 4.02 or as otherwise agreed to with the Company.
Section 6.07. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
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 loss, liability or expense 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.
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As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest,
if any, on particular Securities.
Section 6.08. Disqualification; Conflicting Interests.
The Trustee shall comply with the terms of Section 310(b) of the
Trust Indenture Act.
Section 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States or
any State or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$25,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation 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 an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Securityholder who has been a
bona fide Holder of a Security for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Securityholder, or
(3) the Trustee shall become incapable of acting or a decree or
order for relief under the Federal bankruptcy laws shall be entered
against it or it 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, or
(4) the Trustee shall commence a voluntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal or State bankruptcy, insolvency or similar law or shall consent to
the appointment of or taking possession by a receiver, custodian,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an assignment for
the benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due, or shall take corporate action in
furtherance of any such action,
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
Securityholder who has been a bona fide Holder of a Security for at least 6
months may, on behalf of himself and all
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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.
(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 any 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). If within 1 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 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 Securityholders and accepted appointment
in the manner hereinafter provided, any Securityholder who has been a bona fide
Holder of a Security of such series for at least 6 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 in respect of the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of any series in
the manner and to the extent set forth in Section 1.06. Each notice shall
include the name of the successor Trustee with respect to the Securities of such
series and the address of its principal corporate trust office.
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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 appointed hereunder
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
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 (including any
initial appointment by the Company in connection with the establishment of the
terms of a series as provided in Section 3.01), 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 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
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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
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.
(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 and under the Trust Indenture Act.
Section 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.
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 of 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 and under the Trust Indenture Act, 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.
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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 Section 311(a) of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor), excluding any
creditor relationships described in Section 311(b) of the Trust Indenture Act. A
Trustee who resigned or has been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
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 exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, 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 or any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $25,000,000 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
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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 written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 1.06. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor 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 Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
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 lieu of the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_________________________________________
, as Trustee
By_______________________________________
, as Authenticating Agent
By_______________________________________
Authorized Officer"
ARTICLE SEVEN
SECURITYHOLDERS LIST AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of
Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually, not more than 15 days after each Regular Record Date with respect
to the Securities of each series at the time Outstanding, a list in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of the preceeding Regular Record Date
(or a date to be determined pursuant to Section 3.01 for Original Issue Discount
Securities), and (b) at such other times as the Trustee may request in writing,
within 30 days after 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; provided, however, that so long as the Trustee is the
Security Registrar with respect to the Securities of any series, no such list
shall be required to be furnished with respect to Securities of such series.
Section 7.02. Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, (i) the names and addresses of Holders of Registered
Securities of any series
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contained in the most recent list furnished to the Trustee as provided in
Section 7.01, (ii) the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Security Registrar and (iii) the
names and addresses of Holders of Bearer Securities of such series received by
the Trustee or filed with it within the 2 preceding years.
The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least 6 months preceding the date of such application,
and such application states that the applicants desire to communicate with other
Holders of Securities of such series with respect to their rights under this
Indenture or under the Securities of such series and is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within 5 Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee with respect to such series in
accordance with Section 7.02(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series whose names and addresses
appear in the information preserved at the time by the Trustee with
respect to such series in accordance with Section 7.02(a), and as to
the approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of such series whose name and
address appear in the information preserved at the time by the Trustee with
respect to such series in accordance with Section 7.02(a), a copy of the form of
proxy or other
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communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
5 days after such tender, the Trustee shall mail to such applicants and file
with the Commission together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities or coupons, 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 the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 7.02(b), regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 7.02(b).
Section 7.03. Reports by Trustee.
Within 60 days after May 15 in each year, commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture in accordance with and to the extent required under
Section 313 of the Trust Indenture Act.
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 and
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also with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
Section 7.04. Reports by Company.
The Company will
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the 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) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended; or, if the Company is not
required to file information, documents or reports pursuant to either of
such Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit to all Holders of Securities, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
Subsections (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01. Company May Consolidate, etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States or any State 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 premium, if any) and interest, if any, on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Company substantially as an entirety in
accordance with Section 8.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such conveyance or
transfer is made shall succeed to,
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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 corporation had
been named as the Company herein, and thereafter the predecessor corporation
shall be relieved of all obligations and covenants under this Indenture, the
Securities and any coupons and may be liquidated and dissolved.
Section 8.03. Securities to be Secured in Certain Events.
If, upon any consolidation or merger of the Company with or into any
corporation, or upon the conveyance or transfer by the Company of its properties
and assets substantially as an entirety in accordance with Section 8.01 hereof
to any Person, any Principal Property owned by the Company or a Restricted
Subsidiary immediately prior thereto would thereupon become subject to any
mortgage, security interest, pledge, lien or encumbrance not permitted by
Section 10.05, the Company will, prior to such consolidation, merger, conveyance
or transfer, by indenture supplemental hereto, secure the due and punctual
payment of the principal of (and premium, if any) and interest, if any, on the
Outstanding Securities (equally and ratably with any other indebtedness of the
Company then entitled to be so secured) by a direct lien on such Principal
Property, together with any other properties and assets of the Company or of any
such Restricted Subsidiary, whichever shall be the owner of any such Principal
Property, which would thereupon become subject to any such mortgage, security
interest, pledge, lien or encumbrance, prior to all liens other than any
theretofore existing thereon.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of
Securityholders.
Without the consent of the Holders of any Securities or coupons, 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:
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(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Securities and any coupons appertaining
thereto (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 the benefit of such series), or to surrender any right
or power herein conferred upon the Company; or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, which shall not adversely affect
the interests of the Holders of Outstanding Securities of any series or
any coupons appertaining thereto; or
(4) to secure payment of the Outstanding Securities equally and
ratably with certain other liens as and to the extent required by this
Indenture; or
(5) to add to or change or eliminate any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of (or premium, if any) or interest, if any, on Registered
Securities or of principal of (or premium, if any) or any interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form, provided,
that, any such action shall not adversely affect the interests of the
Holders of Outstanding Securities of any series or the coupons, if any,
appertaining thereto; or
(6) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities
stating that such Events of Default are expressly being included solely
for the benefit of such series); or
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(7) to make any change not otherwise permitted by this Section that
does not adversely affect the rights of any Securityholder; or
(8) to add or change or eliminate any provisions of this Indenture
as shall be necessary or desirable in accordance with the Trust Indenture
Act; or
(9) to establish the form and terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(10) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to 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
(11) to change or eliminate any of the provisions of this Indenture,
provided, that, any such change or elimination shall become effective only
when there is no Outstanding Security of any series created prior to the
execution of such indenture supplemental hereto which is entitled to the
benefit of such provision.
Section 9.02. Supplemental Indentures with Consent of
Securityholders.
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 or pursuant to a 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 the 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 interest, if any, on, any Security of such series, or
reduce the principal amount
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thereof or the rate of interest, if any, thereon or any premium payable
upon the redemption thereof, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of Maturity thereof pursuant to Section 5.02,
or change the Currency in which, any Security (or premium, if any) or the
interest, if any, thereon is payable, or 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 or repayment, on or after
the Redemption Date or Repayment Date); or
(2) 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 applicable to such series hereunder and their
consequences) provided for in this Indenture or reduce the quorum or
voting requirements of Section 13.04; or
(3) modify any of the provisions of this Section or Section 5.13,
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 of such series affected
thereby.
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 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 Securityholders 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 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this
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Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 6.01) 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 9.04. 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 of any series affected thereby theretofore or thereafter
authenticated and delivered hereunder and of any coupons appertaining thereto
shall be bound thereby.
Section 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. 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 and any coupons appertaining thereto
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 and any coupons appertaining thereto.
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ARTICLE TEN
COVENANTS
Section 10.01. 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 premium,
if any) and interest, if any, on the Securities of such series in accordance
with the terms of the Securities and any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 3.01 with
respect to any series of Securities, any interest due on Bearer Securities on or
before Maturity shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Except as otherwise specified with respect to the Securities
of a series as contemplated by Section 3.01, the interest, if any, due in
respect of any temporary Global Security or any Permanent Global Security shall
be payable only upon presentation thereof to the Trustee for notation thereon of
the payment of such interest. Unless otherwise specified with respect to
Securities of any series pursuant to Section 3.01, at the option of the Company,
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
Section 10.02. Maintenance of Offices or Agencies.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) 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 such series and this Indenture may be served. The
Company initially designates the office of an affiliate of the Trustee located
in the Borough of Manhattan, the City of New York, as its agency, and the
Trustee is hereby appointed initially as its agent thereat, for such purposes.
If Securities of a series are issuable as Bearer Securities, the Company will
maintain, subject to
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any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and the coupons, if any, appertaining thereto may be
presented and surrendered for payment; provided, however, that if the Securities
of such series are listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent in London or Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of any 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 principal 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, except that Bearer Securities of
that series and the coupons, if any, appertaining thereto may be presented and
surrendered for payment at the place specified for the purpose pursuant to
Section 3.01.
No payment of principal of (or premium, if any), or interest, if
any, on Bearer Securities shall be made at any office or agency of the Company
in the United States or by check mailed to an address in the United States or by
transfer to an account maintained with a bank located in the United States
except as may be permitted by United States tax laws and regulations at the time
of such payment without detriment to the Company; provided, however, payment of
principal of and any premium and interest denominated in Dollars on any Bearer
Security may be made at an office or agency of, and designated by, the Company
located in the United States if (but only if) payment of the full amount of such
principal, premium and interest in Dollars at all offices outside the United
States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 3.01 with respect to any series of Securities, at the
option of the Holder of any Bearer Security or related coupon, payment may be
made by check in the Currency designated for such
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payment pursuant to the terms of such Bearer Security presented or mailed to an
address outside the United States or by transfer to an account in such Currency
maintained by the payee with a bank located outside the United States.
The Company may 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 10.03. 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 (and premium, if any) or interest, if any, on any of the Securities
of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest, if any, 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 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 (and
premium, if any) or interest, if any, on, any Securities of such series and the
coupons, if any, appertaining thereto, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest, if any, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its 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
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(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest, if any, on Securities of such series and the
coupons, if any, appertaining thereto in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal (and premium, if any) or interest, if any, on the
Securities of such series and the coupons, if any, appertaining thereto;
and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
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 (and premium,
if any) or interest, if any, on any Security of any series and the coupons, if
any, appertaining thereto and remaining unclaimed for 2 years after such
principal (and premium, if any) or interest, if any, 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 or
coupons 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 mail to each such Holder or cause to be published once in
an Authorized Newspaper in each Place
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of Payment with respect to Securities of such series, 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 10.04. Statement as to Compliance
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year, a written statement signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(1) a review of the activities of the Company during such year and
of performance under this Indenture has been made under his supervision
and
(2) to the best of his knowledge, based on such review, the Company
has fulfilled all its obligations under this Indenture throughout such
year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
Section 10.05. Limitations on Liens.
The Company shall not at any time create, incur, assume or suffer to
exist, and shall not cause, suffer or permit a Restricted Subsidiary to create,
incur, assume or suffer to exist, any Secured Debt without making effective
provision (and the Company covenants that in such case it will make or cause to
be made effective provision) whereby the Securities then outstanding shall be
secured equally and ratably with such Secured Debt, so long as such Secured Debt
shall exist; provided, however, that this Section 10.05 shall not prevent any of
the following:
(a) Secured Debt existing at the date of this Indenture;
(b) (i) any mortgage, security interest, pledge, lien or encumbrance
on any property hereafter acquired (including acquisition through merger
or consolidation) or constructed by the Company or a Restricted Subsidiary
and created contemporaneously with, or within twelve months after, such
acquisition or the completion of construction to secure or provide for the
payment of all or any part of the purchase price of
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such property or the cost of construction thereof, as the case may be; or
(ii) any mortgage on property (including any unimproved portion of
partially improved property) of the Company or a Restricted Subsidiary
created within twelve months of completion of construction of a new plant
or plants on such property to secure all or part of the cost of such
construction; or (iii) the acquisition of property subject to any
mortgage, security interest, pledge, lien or encumbrance upon such
property existing at the time of acquisition thereof, whether or not
assumed by the Company or such Restricted Subsidiary;
(c) liens on capital stock hereafter acquired by the Company or any
Restricted Subsidiary, provided, that, the aggregate cost to the Company
and its Restricted Subsidiaries of all capital stock subject to such liens
does not exceed 10% of Shareowners' Equity;
(d) any mortgage, security interest, pledge, lien or encumbrance
securing indebtedness of a corporation which is a successor to the Company
to the extent permitted by Article Eight; or securing indebtedness of a
Restricted Subsidiary outstanding at the time it became a Restricted
Subsidiary; or securing indebtedness of any Person outstanding at the time
it is merged with, or all or substantially all of its properties are
acquired by, the Company or any Restricted Subsidiary, provided, that,
such mortgage, security interest, pledge, lien or encumbrance does not
extend to any other properties of the Company or any Restricted
Subsidiary; or existing on the property or on the outstanding shares or
indebtedness of a corporation at the time it becomes a Restricted
Subsidiary; or created, incurred or assumed in connection with any
industrial revenue bond, pollution control bond or similar financing
arrangement between the Company or any Restricted Subsidiary and any
Federal, State or municipal government or other governmental body or
agency;
(e) any mortgage, security interest, pledge, lien or encumbrance
created in connection with any extension, renewal or refunding (or
successive extensions, renewals or refundings), in whole or in part, of
any indebtedness secured by a mortgage, security interest, pledge, lien or
encumbrance permitted by the foregoing provisions of this Section 10.05
upon the same property theretofore
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subject thereto (plus improvements on such property), provided, that, the
amount of such indebtedness outstanding at that time shall not be
increased;
(f) liens, pledges or deposits made in connection with contracts
(which term includes subcontracts under such contracts) with or made at
the request of the United States or any department or agency thereof,
insofar as such liens, pledges or deposits relate to property
manufactured, installed or constructed by or to be supplied by, or
property furnished to, the Company or a Restricted Subsidiary pursuant to,
or to enable the performance of, such contracts, or property the
manufacture, installation, construction or acquisition of which is
financed pursuant to, or to enable the performance of, such contracts; or
deposits or liens, made pursuant to such contracts, of or upon moneys
advanced or paid pursuant to, or in accordance with the provisions of,
such contracts, or of or upon any materials or supplies acquired for the
purpose of the performance of such contracts; or the assignment or pledge,
to the extent permitted by law, of the right, title and interest of the
Company or a Restricted Subsidiary in and to any such contract, or in and
to any payments due or to become due thereunder, to secure indebtedness
incurred for funds or other property supplied, constructed or installed
for or in connection with the performance by the Company or such
Restricted Subsidiary of its obligations under such contracts;
(g) mechanics', materialmen's, carriers' or other like liens, and
pledges or deposits made in the ordinary course of business to obtain the
release of any such liens or the release of property in the possession of
a common carrier; good faith deposits in connection with tenders, leases
of real estate or bids or contracts (other than contracts involving the
borrowing of money); pledges or deposits to secure public or statutory
obligations; deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds; and deposits to secure the payment of taxes, assessments,
customs duties or other similar charges;
(h) any mortgage, security interest, pledge, lien or encumbrance
arising by reason of deposits with, or the giving of any form of security
to, any governmental agency or any body created or approved by law or
governmental regulation, which is required by law or governmental
regulation as a condition to the
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transaction of any business, or the exercise of any privilege or license,
or to enable the Company or a Restricted Subsidiary to maintain
self-insurance or to participate in any arrangements established by law to
cover any insurance risks or in connection with workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters;
(i) the liens of taxes, assessments or other governmental charges or
levies not at the time due, or the validity of which is being contested in
good faith;
(j) judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(k) easements or similar encumbrances, the existence of which does
not impair the use of the property subject thereto for the purposes for
which it is held or was acquired;
(l) the landlord's interest under any lease of property;
(m) leases granted to others in the ordinary course of business;
(n) Sale and Lease-Back Transactions to the extent permitted by
Section 10.06; and
(o) contracts for the manufacture, construction, installation or
supply of property, products or services providing for a mortgage,
security interest, pledge, lien or encumbrance upon advance, progress or
partial payments made pursuant to such contracts and upon any material or
supplies acquired, manufactured, constructed, installed or supplied in
connection with the performance of such contracts to secure such advance,
progress or partial payments.
Notwithstanding the foregoing provisions of this Section 10.05, the
Company and any one or more Restricted Subsidiaries may create, incur, assume or
suffer to exist Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other Secured Debt
of the Company and its Restricted Subsidiaries which would otherwise be subject
to the foregoing restrictions (not including Secured Debt permitted under
subparagraphs (a) through (o) above) and the
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aggregate value of the Sale and Lease-Back Transactions (as defined in Section
10.06) in existence at such time (not including Sale and Lease-Back Transactions
the proceeds of which have been or will be applied in accordance with Clause (b)
of Section 10.06), does not at the time exceed 10% of Shareowners' Equity.
Section 10.06. Limitations on Sale and Lease-Back.
The Company will not, and will not permit any Restricted Subsidiary
to, sell or transfer (except to the Company or one or more Restricted
Subsidiaries, or both) any Principal Property owned by it and which has been in
full operation for more than 180 days prior to such sale or transfer with the
intention (i) of taking back a lease on such property, except a lease for a
temporary period (not exceeding 36 months), and (ii) that the use by the Company
or such Restricted Subsidiary of such property will be discontinued on or before
the expiration of the term of such lease (any such transaction being herein
referred to as a "Sale and Lease-Back Transaction"), unless
(a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 10.05 hereof, to incur Secured Debt
equal in amount to the amount realized or to be realized upon such sale or
transfer secured by a mortgage on the property to be leased without
equally and ratably securing the Securities; or
(b) the Company or a Restricted Subsidiary shall, within 180 days of
the effective date of any such transaction, apply an amount equal to the
value of the property so leased (i) to the retirement (other than any
mandatory retirement) of Consolidated Funded Debt or indebtedness then
outstanding of the Company or any Restricted Subsidiary that was Funded
Debt at the time it was created (other than Consolidated Funded Debt or
such other indebtedness owned by the Company or any Restricted
Subsidiary), or (ii) to the purchase of Principal Property having a value
at least equal to the value of such property; provided, however, that the
amount to be so applied pursuant to the preceding Clause (i) or (ii) shall
be reduced by (A) the principal amount of any Securities delivered within
180 days of the effective date of any such transaction to the Trustee for
retirement and cancellation, and (B) the principal amount of Consolidated
Funded Debt or
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indebtedness that was Funded Debt at the time it was created (other than
Securities) retired by the Company or a Restricted Subsidiary within 180
days of the effective date of any such transaction; or
(c) the Sale and Lease-Back Transaction involved was an industrial
revenue bond, pollution control bond or similar financing arrangement
between the Company or any Restricted Subsidiary and any Federal, State or
municipal government or other governmental body or agency.
The term "value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such Sale and
Lease-Back Transaction or (ii) the fair value of such property at the time of
entering into such Sale and Lease-Back Transaction, as determined by the Board
of Directors, in either case divided first by the number of full years of the
term of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
Section 10.07. Limitations on Change in Subsidiary Status.
The Company may designate any Subsidiary as an Unrestricted
Subsidiary or as a Restricted Subsidiary, subject to the provisions set forth
below:
(a) the Company will not permit any Subsidiary to be designated as
an Unrestricted Subsidiary unless at the time of such designation the
Subsidiary so designated does not own, directly or indirectly, any capital
stock of any Restricted Subsidiary or any Funded Debt or Secured Debt of
the Company or any Restricted Subsidiary;
(b) the Company will not permit any Restricted Subsidiary to be
designated as, or otherwise to become, an Unrestricted Subsidiary unless
immediately after such Restricted Subsidiary becomes an Unrestricted
Subsidiary, no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall exist;
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(c) the Company will not permit any Unrestricted Subsidiary to be
designated as a Restricted Subsidiary unless immediately after such
Unrestricted Subsidiary becomes a Restricted Subsidiary, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall exist; and
(d) promptly after the designation of any Subsidiary as an
Unrestricted Subsidiary or as a Restricted Subsidiary, there shall be
filed with the Trustee, an Officers' Certificate stating that the
provisions of this Section have been complied with in connection with such
designation.
Section 10.08. Waiver of Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.05, 10.06 and 10.07 with respect
to the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Securities of such
series at the time Outstanding shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant 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 covenant or condition shall remain in full force and
effect.
Section 10.09. Defeasance of Certain Obligations.
If this Section 10.09 has been specified in accordance with Section
3.01 to be applicable to Securities of any series, the Company may omit to
comply with any term, provision or condition set forth in Sections 10.05, 10.06
and 10.07, and Section 5.01(d) with respect to Sections 10.05, 10.06 and 10.07
shall be deemed not to be an Event of Default, in each case with respect to the
Securities of that series, when
(1) with reference to this Section 10.09, the Company has deposited
or caused to be deposited with the Trustee irrevocably (irrespective of
whether the conditions in Clauses (2), (3), (4), (5) and (6) below have
been satisfied, but subject to the provisions of
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Section 4.02(b) and the last paragraph of Section 10.03) as trust funds in
trust for the purpose,
(A) moneys, or
(B) securities evidencing direct general obligations of, or
obligations the payment of the principal and interest of which are
unconditionally guaranteed by, the United States, which obligations,
or the guaranty of which, constitutes the full faith and credit
obligation of the United States, which securities shall not be
callable or redeemable at the option of the issuer and which
securities mature and bear interest in such amount and at such times
as will provide moneys, or
(C) a combination thereof,
in an amount sufficient to pay and discharge the principal of (and
premium, if any) and each installment of principal of (and premium, if
any) and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest, if any, or any mandatory sinking
fund payments or analogous payments applicable to Securities of such
series on the day on which such payments are due and payable in accordance
with the terms of the Indenture and of such Securities and the coupons, if
any, appertaining thereto;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of the Securities of such series and
the coupons, if any, appertaining thereto;
(3) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest for purposes of
the TIA with respect to the Securities of any series;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, would become an Event of Default with respect to
the Securities of that series shall have occurred or be continuing on the
date of such deposit and no Event of Default under Section 5.01(e) or
5.01(f) or an event which with the giving of notice or lapse of time, or
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both, would become an Event of Default under Section 5.01(e) or 5.01(f)
shall have occurred and be continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities of such series and the
coupons, if any, appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and
defeasance of certain obligations and will be subject to Federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred;
and
(6) the Company has delivered to the Trustee (A) an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the defeasance in respect of the
Securities of such series contemplated by this Section have been complied
with and (B) if securities have been deposited pursuant to Clause (1) of
this Section, a certificate of independent certified public accountants
stating that such securities mature and bear interest in such amounts and
at such times as will (together with any moneys otherwise provided
pursuant to Clause (1) of this Section) provide sufficient moneys as
provided in Clause (1) of this Section.
Section 10.10. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts as contemplated by Clause (13) of Section 3.01, the Company will pay to
the Holder of any Security of such series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any) or interest, if any, on or in
respect of, any Security of any series or the payment of any coupon appertaining
thereto or the net proceeds received at Maturity or on the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of additional amounts provided for in this Section to the extent
that, in such context, additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section and express mention
of the payment of additional amounts (if applicable) in any provisions hereof
shall not be construed as excluding
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additional amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to such series (or if the Securities of such series will not bear interest prior
to Maturity, the first day on which a payment of principal (and premium, if any)
is made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest, if any, if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of (or premium, if any) or interest, if any, on the
Securities of such series shall be made to Holders of Securities of such series
or any coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Right of Redemption.
The Securities of each series shall be subject to such optional
redemption or mandatory redemption, or both, as shall be set forth in the Board
Resolution or supplemental indenture establishing such series.
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Section 11.02. Applicability of Article.
Redemption of Securities of any series at the election of the
Company or otherwise, as permitted or required by their terms, shall be made in
accordance with such terms and, except as otherwise specified pursuant to
Section 3.01 for the Securities of such series, this Article Eleven.
Section 11.03. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company of less
than all the Securities of any series, 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 and of
the principal amount of Securities of such series to be redeemed.
Section 11.04. Selection by Trustee of Securities to be Redeemed.
Except as otherwise provided pursuant to Section 3.01, if less than
all the Securities of any series 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 of the principal of Securities of such series of a denomination larger
than $1,000. The portions of the principal of Securities so selected for partial
redemption shall be equal to $1,000 or the smallest authorized denomination of
the Securities of such series, whichever is greater, or an integral multiple
thereof.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed.
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 Security redeemed or to be redeemed only in part, to the
portion of the principal of such Security which has been or is to be redeemed.
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Section 11.05. Notice of Redemption.
Notice of redemption shall be in the manner provided in Section 1.06
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date,
(5) the place or places where such Securities, together in the case
of Bearer Securities with all coupons, if any, appertaining thereto
maturing after the Redemption Date are to be surrendered for payment of
the Redemption Price and accrued interest, if any, which shall be the
office or agency of the Company in each Place of Payment with respect to
Securities of such series,
(6) that the redemption is for a sinking fund, if such is
the case,
(7) that Bearer Securities may be surrendered for payment only at
such place or places outside of the United States, except as otherwise
specified in Section 10.02, and unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption must
be accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished, and
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(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 3.05 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
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 of and at the expense of the Company.
Failure to give such notice to the Holder of any Security or any
defect in such notice given to the Holder of any Security shall not affect the
validity of the proceedings for any other Security or part thereof.
Section 11.06. 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 10.03) 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, if any, to the
Redemption Date on all the Securities which are to be redeemed on that date.
Section 11.07. 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, together with accrued interest, if any, to
the Redemption Date, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall cease to bear interest and the coupons for such interest
appertaining to any Bearer Security so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of such Securities for redemption
in accordance with said notice together with all coupons, if any, appertaining
thereto maturing after the Redemption Date, such Securities shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of any interest on Bearer
Securities of such series the Stated
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Maturity of which interest is on or prior to the Redemption Date shall be
payable (but without interest thereon, unless the Company shall default in the
payment thereof) only at an office or agency outside the United States (except
as otherwise provided in Section 10.02) and, unless otherwise specified with
respect to the Securities of such series pursuant to Section 3.01, only upon
presentation and surrender of coupons for such interest; and provided, further,
that, unless otherwise specified with respect to the Securities of such series
pursuant to Section 3.01, installments of any interest on Registered Securities
of such series the Stated Maturity of which interest is on or prior to the
Redemption Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Registered
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 3.07.
If a Bearer Security of any series surrendered for redemption shall
not be accompanied by all coupons, if any, appertaining thereto maturing after
the Redemption Date, such Bearer Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such missing coupons
or the surrender of such missing coupon or coupons may be waived by the Company
if there is furnished to the Company and the Trustee such security or indemnity
as they may require to save each of them and any agent of them harmless. If
thereafter the Holder of such Bearer Security shall surrender to the Trustee or
any Paying Agent in respect of such series any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted without interest thereon;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 10.02) and, unless otherwise specified with respect to the
Securities of such series pursuant to Section 3.01, only upon presentation and
surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security (or, in the case of any Original Issue Discount Security, such
Security's Yield to Maturity).
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Section 11.08. Securities Redeemed in Part.
Any Registered 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 deliver to the Holder of such
Security without service charge, a new Registered Security or Registered
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 Registered Security
so surrendered. Any Permanent Global Security which is to be redeemed only in
part shall be so surrendered, and the Company shall execute, and the Trustee
shall authenticate and deliver to the depositary for such Permanent Global
Security, without service charge, a new Permanent Global Security in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Permanent Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.
Redemption or retirement of Securities of any series through
operation of a sinking fund, as permitted or required by their terms, shall be
made in accordance with such terms and, except as otherwise specified as
contemplated by Section 3.01 for the Securities of such series, this Article.
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 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of
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any series as provided for by the terms of the Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons, if any,
appertaining thereto, 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, however, 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 12.03. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
any series of Securities or such shorter period as shall be satisfactory to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for Securities of
such series pursuant to the terms of such Securities, 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 such
series pursuant to Section 12.02 and will also deliver to the Trustee any
Securities to be so delivered. The Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
11.04 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 11.05. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.07 and 11.08.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 13.01. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable in whole or in part as Bearer
Securities, a meeting of Holders of Securities of such series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 13.02. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series issuable in whole or in part as Bearer Securities for
any purpose specified in Section 13.01, to be held at such time and at such
place in the Borough of Manhattan, The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section l.06, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 13.01, by
written request setting forth in reasonable detail the action proposed to be
taken at such meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or in London for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
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Section 13.03. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 13.04. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which is
required to be given by the Holders of not less than a greater percentage in
such principal amount as this Indenture expressly specifies or as shall have
been specified with respect to the Securities of such series pursuant to Section
3.01, the Persons entitled to vote such greater percentage in principal amount
of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Subject to Section 13.05, notice of the reconvening of any adjourned meeting
shall be given as provided in Section 13.02(a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series which shall constitute a quorum.
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<PAGE> 130
Except as limited by the proviso to Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any consent or waiver which is required to be given
by the Holders of not less than a greater percentage in such principal amount as
shall have been specified with respect to the Securities of such series pursuant
to this Indenture or Section 3.01 may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid only by
the affirmative vote of the Holders of such greater percentage in principal
amount of the outstanding Securities of that series; and provided, further,
that, except as limited by the proviso to Section 9.02, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the coupons, if any,
appertaining thereto, whether or not present or represented at the meeting.
Section 13.05. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise
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permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section l.04 and the appointment of any
proxy shall be proved in the manner specified in Section l.04 or, in the case of
Bearer Securities, by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section l.04 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section l.04 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by holders of Securities as provided in Section 13.02(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount (or, in case the
Securities of such series are denominated in a Foreign Currency, the equivalent
thereof) of Securities of such series held or represented by such Person;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairperson of the meeting to be not Outstanding. The chairperson of the meeting
shall have no right to vote, except as a Holder of a Security of such series or
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 13.02 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
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Section 13.06. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 13.02 and, if
applicable, Section 13.04. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the meeting and one
such copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 14.01. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 3.01 for
Securities of such series) in accordance with this Article.
Section 14.02. Repayment of Securities.
Each Security which is subject to repayment in whole or in part at
the option of the Holder thereof on a Repayment Date shall, unless otherwise
provided in its
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terms, be repaid at the applicable Repayment Price together with interest
accrued to such Repayment Date as specified pursuant to Section 3.01.
Section 14.03. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Security to be repaid in
whole or in part together with written notice of the exercise of such option at
any office or agency of the Company in the Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 10.02. Such notice, which shall be
irrevocable, shall specify the principal amount of such Security to be repaid,
which shall be equal to the minimum authorized denomination for such Security or
an integral multiple thereof, and shall identify the Security to be repaid and,
in the case of a partial repayment of the Security, shall specify the
denominations of the Security or Securities of the same series to be issued to
the Holder for the portion of the principal of the Security surrendered which is
not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 10.02.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
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authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and regulations
in effect at the time of the exchange; neither the Trustee nor the Security
Registrar shall issue Registered Securities for Bearer Securities if it has
received an Opinion of Counsel that as a result of such issuance the Company
would suffer adverse consequences under the United States Federal income tax
laws then in effect and the Company has delivered to the Trustee a Company Order
directing the Trustee not to make such issuances thereafter unless and until the
Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Securities shall relate,
in the case of any Security repaid or to be repaid in part, to the portion of
the principal of such Security which has been or is to be repaid.
Section 14.04. Election of Repayment by Remarketing Entities.
The Company may elect with respect to Securities of any series which
are repayable at the option of the Holders thereof before their Stated Maturity,
at any time prior to any Repayment Date to designate one or more Remarketing
Entities to purchase, at a price equal to the Repayment Price, Securities of
such series from the Holders thereof who give notice and surrender their
Securities in accordance with Section 14.03.
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Section 14.05. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and
the Securities so to be repaid having been surrendered as aforesaid, such
Securities shall, unless purchased in accordance with Section 14.04, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Securities shall cease to bear interest and
shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Securities from time to time until
payment in full of such principal amount.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, SHAREOWNERS,
OFFICERS AND DIRECTORS
Section 15.01. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security or the coupons, if any, appertaining thereto,
or for any claim based thereon or otherwise in respect thereof, shall be had
against any incorporator, shareowner, officer or director, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
shareowners, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or the coupons, if any,
appertaining thereto or implied therefrom; and that any
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<PAGE> 136
and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareowner, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Securities of any series or any coupon appertaining thereto or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities and coupons.
This Indenture may be executed in any number of counterparts, each
of which will be deemed to be an original, but all such counterparts together
will constitute one and the same instrument.
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<PAGE> 137
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.
NEW ROCKWELL INTERNATIONAL CORPORATION (to
be renamed Rockwell International
Corporation)
[CORPORATE SEAL]
By: /s/ William J. Calise, Jr.
----------------------------------
Title: Senior Vice President,
General Counsel and
Secretary
Attest:
/s/ Samuel S. McKenney
- ---------------------------
Title: Assistant Secretary
MELLON BANK, N.A., as Trustee
[CORPORATE SEAL]
By: /s/ Elaine D. Renn
-------------------------
Title: Vice President
Attest:
/s/ Anthony A. Ditka
- ---------------------
Authorized Officer
128
<PAGE> 138
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 4th day of December, 1996, before me personally appeared
William J. Calise, Jr., to me known, who, being by me duly sworn, did depose and
say that he resides at 2224 Paseo Del Mar, Palos Verdes Estates, CA 90274; that
he is the Senior Vice President, General Counsel and Secretary of NEW ROCKWELL
INTERNATIONAL CORPORATION, one of the parties 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.
[NOTARIAL SEAL] /s/ Sarah Chan
-------------------
Notary Public
<PAGE> 139
COMMONWEALTH OF )
PENNSYLVANIA
: ss.:
COUNTY OF ALLEGHENY )
On this 3rd day of December, 1996, before me personally appeared
Elaine D. Renn, to me known, who, being by me duly sworn, did depose and say
that she resides in Pittsburgh, Pennsylvania; that she is a Vice President of
MELLON BANK, N.A., one of the parties described in and which executed the
foregoing instrument; that she 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 she signed her
name thereto by like authority.
[NOTARIAL SEAL] /s/ Tina Renee Melzer
------------------------
Notary Public
<PAGE> 140
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Rockwell International Corporation or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes or resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the
A-1-1
<PAGE> 141
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]____________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making
Certification]
___________________________________
Name:
Title:
(AUTHORIZED SIGNATORY)
_________________________
A-1-2
<PAGE> 142
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Rockwell International
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States
A-2-1
<PAGE> 143
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________________
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as
Operator of the Euroclear System]
[CEDEL]
By __________________________________
Name:
Title:
A-2-2
<PAGE> 1
Exhibit 4-b-2
BY-LAWS
OF ROCKWELL INTERNATIONAL CORPORATION
(AS AMENDED EFFECTIVE OCTOBER 1, 1997)
ARTICLE I.
OFFICES
SECTION 1. Registered Office in Delaware; Resident Agent. The address
of the Corporation's registered office in the State of Delaware and the name and
address of its resident agent in charge thereof are as filed with the Secretary
of State of the State of Delaware.
SECTION 2. Other Offices. The Corporation may also have an office or
offices at such other place or places either within or without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Corporation requires.
ARTICLE II.
MEETINGS OF SHAREOWNERS
SECTION 1. Place of Meetings. All meetings of the shareowners of the
Corporation shall be held at such place, within or without the State of
Delaware, as may from time to time be designated by resolution passed by the
Board of Directors.
SECTION 2. Annual Meeting. An annual meeting of the shareowners for the
election of directors and for the transaction of such other proper business,
notice of which was given in the notice of meeting, shall be held on a date and
at a time as may from time to time be designated by resolution passed by the
Board of Directors.
SECTION 3. Special Meetings. A special meeting of the shareowners for
any purpose or purposes shall be called only by the Board of Directors pursuant
to a resolution adopted by a majority of the whole Board.
SECTION 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of the shareowners, whether annual or special,
shall be mailed, postage prepaid, not less than ten nor more than sixty days
before the date of the meeting, to each shareowner entitled to vote at such
meeting, at the shareowner's address as it appears on the records of the
Corporation. Every such notice shall state the place, date and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which
the meeting is called. Notice of any adjourned meeting of the shareowners shall
not be required to be given, except when expressly required by law.
SECTION 5. List of Shareowners. The Secretary shall, from information
obtained from the transfer agent, prepare and make, at least ten days before
every meeting of shareowners, a complete list of the shareowners entitled to
vote at the meeting, arranged in alphabetical order, and showing the
1 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
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address of each shareowner and the number of shares registered in the name of
each shareowner. Such list shall be open to the examination of any shareowner,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or if not so specified, at the place where the meeting is
to be held. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
shareowner who is present. The stock ledger shall be the only evidence as to who
are the shareowners entitled to examine the stock ledger, the list referred to
in this section or the books of the Corporation, or to vote in person or by
proxy at any meeting of shareowners.
SECTION 6. Quorum. At each meeting of the shareowners, the holders of a
majority of the issued and outstanding stock of the Corporation present either
in person or by proxy shall constitute a quorum for the transaction of business
except where otherwise provided by law or by the Certificate of Incorporation or
by these by-laws for a specified action. Except as otherwise provided by law, in
the absence of a quorum, a majority in interest of the shareowners of the
Corporation present in person or by proxy and entitled to vote shall have the
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until shareowners holding the requisite amount of
stock shall be present or represented. At any such adjourned meeting at which a
quorum may be present, any business may be transacted which might have been
transacted at a meeting as originally called, and only those shareowners
entitled to vote at the meeting as originally called shall be entitled to vote
at any adjournment or adjournments thereof. The absence from any meeting of the
number of shareowners required by law or by the Certificate of Incorporation or
by these by-laws for action upon any given matter shall not prevent action at
such meeting upon any other matter or matters which may properly come before the
meeting, if the number of shareowners required in respect of such other matter
or matters shall be present.
SECTION 7. Organization. At every meeting of the shareowners the
Chairman of the Board, or, in his absence, the President, or in the absence of
the Chairman and the President, a director or an officer of the Corporation
designated by the Board shall act as Chairman. The Secretary, or, in his
absence, an Assistant Secretary, shall act as Secretary at all meetings of the
shareowners. In the absence from any such meeting of the Secretary and the
Assistant Secretaries, the Chairman may appoint any person to act as Secretary
of the meeting.
SECTION 8. Notice of Shareowner Business and Nominations.
(A) Annual Meetings of Shareowners. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the shareowners may be made at an annual meeting of
shareowners (a) pursuant to the Corporation's notice of meeting, (b) by or at
the direction of the Board of Directors or (c) by any shareowner of the
Corporation who was a shareowner of record at the time of giving of notice
provided for in this by-law, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this by-law.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareowner pursuant to clause (c) of paragraph (A)
(1) of this by-law, the shareowner must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for shareowner action. To be timely, a shareowner's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date
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<PAGE> 3
of the annual meeting is more than 30 days before or more than 60 days after
such anniversary date, notice by the shareowner to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a shareowner's
notice as described above. Such shareowner's notice shall set forth (a) as to
each person whom the shareowner proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the shareowner proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareowner and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the shareowner giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such shareowner, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such shareowner
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this by-law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a shareowner's notice required by this by-law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B) Special Meetings of Shareowners. Only such business shall be
conducted at a special meeting of shareowners as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareowners at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any shareowner of the Corporation
who is a shareowner of record at the time of giving of notice provided for in
this by-law, who shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this by-law. In the event the Corporation
calls a special meeting of shareowners for the purpose of electing one or more
directors to the Board of Directors, any such shareowner may nominate a person
or persons (as the case may be), for election to such position(s) as specified
in the Corporation's notice of meeting, if the shareowner's notice required by
paragraph (A)(2) of this by-law shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a shareowner's notice as described above.
3 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 4
(C) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this by-law shall be eligible to serve as directors
and only such business shall be conducted at a meeting of shareowners as shall
have been brought before the meeting in accordance with the procedures set forth
in this by-law. Except as otherwise provided by law, the Certificate of
Incorporation or these by-laws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this by-law and, if any proposed
nomination or business is not in compliance with this by-law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this by-law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this by-law, a
shareowner shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this by-law. Nothing in this by-law shall be deemed to affect any
rights (i) of shareowners to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the
holders of any series of Preferred Stock to elect directors under specified
circumstances.
SECTION 9. Business and Order of Business. At each meeting of the
shareowners such business may be transacted as may properly be brought before
such meeting, except as otherwise provided by law or in these by-laws. The order
of business at all meetings of the shareowners shall be as determined by the
Chairman, unless otherwise determined by a majority in interest of the
shareowners present in person or by proxy at such meeting and entitled to vote
thereat.
SECTION 10. Voting. Except as otherwise provided by law, the
Certificate of Incorporation or these by-laws, each shareowner shall at every
meeting of the shareowners be entitled to one vote for each share of stock held
by such shareowner. Any vote on stock may be given by the shareowner entitled
thereto in person or by proxy appointed by an instrument in writing, subscribed
(or transmitted by electronic means and authenticated as provided by law) by
such shareowner or by the shareowner's attorney thereunto authorized, and
delivered to the Secretary; provided, however, that no proxy shall be voted
after three years from its date unless the proxy provides for a longer period.
Except as otherwise provided by law, the Certificate of Incorporation or these
by-laws, at all meetings of the shareowners, all matters shall be decided by the
vote (which need not be by ballot) of a majority in interest of the shareowners
present in person or by proxy and entitled to vote thereat, a quorum being
present.
ARTICLE III.
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, affairs and business of the
Corporation shall be managed by or under the direction of its Board of
Directors.
SECTION 2. Number, Qualifications, and Term of Office. Subject to the
rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, the number
4 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 5
of directors of the Corporation shall be fixed from time to time exclusively by
the Board of Directors pursuant to a resolution adopted by a majority of the
whole Board. A director need not be a shareowner.
The directors, other than those who may be elected by the holders of
any series of Preferred Stock or any other series or class of stock, as provided
herein or in any Preferred Stock Designation, shall be divided into three
classes, as nearly equal in number as possible. One class of directors shall be
initially elected for a term expiring at the annual meeting of shareowners to be
held in 1997, another class shall be initially elected for a term expiring at
the annual meeting of shareowners to be held in 1998, and another class shall be
initially elected for a term expiring at the annual meeting of shareowners to be
held in 1999. Members of each class shall hold office until their successors are
elected and shall have qualified. At each annual meeting of the shareowners of
the Corporation, commencing with the 1997 annual meeting, the successors of the
class of directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of shareowners held in the third year following
the year of their election.
SECTION 3. Election of Directors. At each meeting of the shareowners
for the election of directors, at which a quorum is present, the directors shall
be the persons receiving the greatest number of votes cast by the holders of
stock entitled to vote for such directors.
SECTION 4. Quorum and Manner of Acting. A majority of the members of
the Board of Directors shall constitute a quorum for the transaction of business
at any meeting, and the act of a majority of the directors present at any
meeting at which a quorum is present shall be the act of the Board of Directors
unless otherwise provided by law, the Certificate of Incorporation or these
by-laws. In the absence of a quorum, a majority of the directors present may
adjourn any meeting from time to time until a quorum shall be obtained. Notice
of any adjourned meeting need not be given. The directors shall act only as a
board and the individual directors shall have no power as such.
SECTION 5. Place of Meetings. The Board of Directors may hold its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time determine or as shall be specified or fixed in the
respective notices or waivers of notice thereof.
SECTION 6. First Meeting. Promptly after each annual election of
directors, the Board of Directors shall meet for the purpose of organization,
the election of officers and the transaction of other business, at the same
place as that at which the annual meeting of shareowners was held or as
otherwise determined by the Board. Notice of such meeting need not be given.
Such meeting may be held at any other time or place which shall be specified in
a notice given as hereinafter provided for special meetings of the Board of
Directors.
SECTION 7. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such places and at such times as the Board shall from time to
time determine. If any day fixed for a regular meeting shall be a legal holiday
at the place where the meeting is to be held, then the meeting which would
otherwise be held on that day shall be held at the same hour on the next
succeeding business day not a legal holiday. Notice of regular meetings need not
be given.
SECTION 8. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board and shall
be called by the Chairman of the Board or the Secretary at the written request
of three directors. Notice of each such meeting stating the time and place of
the meeting shall be given to each director by mail, telephone, other electronic
transmission or personally. If by mail, such notice shall be given not less than
five days before the meeting; and if by telephone, other electronic transmission
or personally, not less than two days before the meeting.
5 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 6
A notice mailed at least two weeks before the meeting need not state the purpose
thereof except as otherwise provided in these by-laws. In all other cases the
notice shall state the principal purpose or purposes of the meeting. Notice of
any meeting of the Board need not be given to a director, however, if waived by
the director in writing before or after such meeting or if the director shall be
present at the meeting.
SECTION 9. Organization. At each meeting of the Board of Directors, the
Chairman of the Board, or, in his absence, the President, or, in the absence of
the Chairman and the President, a director or an officer of the Corporation
designated by the Board shall act as Chairman. The Secretary, or, in the
Secretary's absence, any person appointed by the Chairman, shall act as
Secretary of the meeting.
SECTION 10. Order of Business. At all meetings of the Board of
Directors, business shall be transacted in the order determined by the Board.
SECTION 11. Resignations. Any director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board, the President or
the Secretary of the Corporation. The resignation of any director shall take
effect at the time specified therein, and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 12. Compensation. Each director shall be paid such
compensation, if any, as shall be fixed by the Board of Directors.
SECTION 13. Indemnification of Directors and Officers.
(A) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation or is or was serving at the request of the Corporation
as a director, officer, employee or agent (except in each of the foregoing
situations to the extent any agreement, arrangement or understanding of agency
contains provisions that supersede or abrogate indemnification under this
section) of another corporation or of any partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(B) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent (except in each of the
foregoing situations to the extent any agreement, arrangement or understanding
of agency contains provisions that supersede or abrogate indemnification under
this section) of another corporation or of any partnership, joint venture,
trust,
6 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 7
employee benefit plan or other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of Delaware or such other court shall deem proper.
(C) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (A) and (B), or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by or on
behalf of such person in connection therewith. If any such person is not wholly
successful in any such action, suit or proceeding but is successful, on the
merits or otherwise, as to one or more but less than all claims, issues or
matters therein, the Corporation shall indemnify such person against all
expenses (including attorneys' fees) actually and reasonably incurred by or on
behalf of such person in connection with each claim, issue or matter that is
successfully resolved. For purposes of this subsection and without limitation,
the termination of any claim, issue or matter by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
(D) Notwithstanding any other provision of this section, to the extent
any person is a witness in, but not a party to, any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent (except in each of the foregoing situations
to the extent any agreement, arrangement or understanding of agency contains
provisions that supersede or abrogate indemnification under this section) of
another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise, such person shall be indemnified against all
expenses (including attorneys' fees) actually and reasonably incurred by or on
behalf of such person in connection therewith.
(E) Indemnification under subsections (A) and (B) (unless ordered by a
court) shall be made only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in subsections (A) and (B). Such determination
shall be made (1) if a Change of Control (as hereinafter defined) shall not have
occurred, (a) by the Board of Directors by a majority vote of the Disinterested
Directors (as hereinafter defined), even though less than a quorum or (b) if
there are no Disinterested Directors or, even if there are Disinterested
Directors, a majority of such Disinterested Directors so directs, by (i)
Independent Counsel (as hereinafter defined) in a written opinion to the Board
of Directors, a copy of which shall be delivered to the claimant, or (ii) the
shareowners of the Corporation; or (2) if a Change of Control shall have
occurred, by Independent Counsel selected by the claimant in a written opinion
to the Board of Directors, a copy of which shall be delivered to the claimant,
unless the claimant shall request that such determination be made by or at the
direction of the Board of Directors, in which case it shall be made in
accordance with clause (1) of this sentence. Any claimant shall be entitled to
be indemnified against the expenses (including attorneys' fees) actually and
reasonably incurred by such claimant in cooperating with the person or entity
making the determination of entitlement to indemnification (irrespective of the
determination
7 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 8
as to the claimant's entitlement to indemnification) and, to the extent
successful, in connection with any litigation or arbitration with respect to
such claim or the enforcement thereof.
(F) If a Change of Control shall not have occurred, or if a Change of
Control shall have occurred and a director, officer, employee or agent requests
pursuant to clause (2) of the second sentence in subsection (E) that the
determination whether the claimant is entitled to indemnification be made by or
at the direction of the Board of Directors, the claimant shall be conclusively
presumed to have been determined pursuant to subsection (E) to be entitled to
indemnification if (1)(a) within fifteen days after the next regularly scheduled
meeting of the Board of Directors following receipt by the Corporation of the
request therefor, the Board of Directors shall not have resolved by majority
vote of the Disinterested Directors to submit such determination to (i)
Independent Counsel for its determination or (ii) the shareowners for their
determination at the next annual meeting, or any special meeting that may be
held earlier, after such receipt, and (b) within sixty days after receipt by the
Corporation of the request therefor (or within ninety days after such receipt if
the Board of Directors in good faith determines that additional time is required
by it for the determination and, prior to expiration of such sixty-day period,
notifies the claimant thereof), the Board of Directors shall not have made the
determination by a majority vote of the Disinterested Directors, or (2) after a
resolution of the Board of Directors, timely made pursuant to clause (1)(a)(ii)
above, to submit the determination to the shareowners, the shareowners meeting
at which the determination is to be made shall not have been held on or before
the date prescribed (or on or before a later date, not to exceed sixty days
beyond the original date, to which such meeting may have been postponed or
adjourned on good cause by the Board of Directors acting in good faith);
provided, however, that this sentence shall not apply if the claimant has
misstated or failed to state a material fact in connection with his or her
request for indemnification. Such presumed determination that a claimant is
entitled to indemnification shall be deemed to have been made (I) at the end of
the sixty-day or ninety-day period (as the case may be) referred to in clause
(1)(b) of the immediately preceding sentence or (II) if the Board of Directors
has resolved on a timely basis to submit the determination to the shareowners,
on the last date within the period prescribed by law for holding such
shareowners meeting (or a postponement or adjournment thereof as permitted
above).
(G) Expenses (including attorneys' fees) incurred in defending a civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding to a director or officer, promptly after receipt of a request
therefor stating in reasonable detail the expenses incurred, and to an employee
or agent as authorized by the Board of Directors; provided that in each case the
Corporation shall have received an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
as authorized in this section.
(H) The Board of Directors shall establish reasonable procedures for
the submission of claims for indemnification pursuant to this section,
determination of the entitlement of any person thereto and review of any such
determination. Such procedures shall be set forth in an appendix to these
by-laws and shall be deemed for all purposes to be a part hereof.
(I) For purposes of this section,
(1) "Change of Control" means a change of control of the
Corporation at any time after the distribution of the shares of capital stock of
the Corporation to the holders of capital stock of Rockwell International
Corporation of a nature that would be required to be reported in a proxy
statement pursuant to Section 14(a) of the Exchange Act or in a Form 8-K
pursuant to Section 13 of the Exchange
8 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 9
Act (or in any similar form or schedule under either of those provisions or any
successor provision), whether or not the Corporation is then subject to such
reporting requirement; provided, however, that, without limitation, a Change of
Control shall be deemed to have occurred if (i) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange 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 without
the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such percentage
interest; (ii) the Corporation is a party to a merger, consolidation, sale of
assets or other reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors in office immediately prior to such
transaction or event constitute less than a majority of the Board of Directors
immediately thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Corporation's shareowners was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(2) "Disinterested Director" means a director of the Corporation who
is not and was not a party to an action, suit or proceeding in respect of which
indemnification is sought by a director, officer, employee or agent.
(3) "Independent Counsel" means a law firm, or a member of a law
firm, that (i) is experienced in matters of corporation law; (ii) neither
presently is, nor in the past five years has been, retained to represent the
Corporation, the director, officer, employee or agent claiming indemnification
or any other party to the action, suit, or proceeding giving rise to a claim for
indemnification under this section, in any matter material to the Corporation,
the claimant or any such other party; and (iii) would not, under applicable
standards of professional conduct then prevailing, have a conflict of interest
in representing either the Corporation or such director, officer, employee or
agent in an action to determine the Corporation's or such person's rights under
this section.
(J) The Indemnification and advancement of expenses herein provided, or
granted pursuant hereto, shall not be deemed exclusive of any other rights to
which any of those indemnified or eligible for advancement of expenses may be
entitled under any agreement, vote of shareowners or Disinterested Directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such person.
Notwithstanding any amendment, alteration or repeal of this section or any of
its provisions, or of any of the procedures established by the Board of
Directors pursuant to subsection (H) hereof, any person who is or was a
director, officer, employee or agent of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation or of any partnership, joint venture, employee benefit plan
or other enterprise shall be entitled to indemnification in accordance with the
provisions hereof and thereof with respect to any action taken or omitted prior
to such amendment, alteration or repeal except to the extent otherwise required
by law.
(K) No indemnification shall be payable pursuant to this section with
respect to any action against the Corporation commenced by an officer, director,
employee or agent unless the Board of Directors shall have authorized the
commencement thereof or unless and to the extent that this section or the
procedures established pursuant to subsection (H) shall specifically provide for
indemnification of expenses relating to the enforcement of rights under this
section and such procedures.
9 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
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ARTICLE IV.
COMMITTEES
SECTION 1. Appointment and Powers. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more directors of the
Corporation, which, to the extent provided in said resolution or in these
by-laws and not inconsistent with Section 141 of the Delaware General
Corporation Law, as amended, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board of
Directors.
SECTION 2. Term of Office and Vacancies. Each member of a committee
shall continue in office until a director to succeed him or her shall have been
elected and shall have qualified, or until he or she ceases to be a director or
until he or she shall have resigned or shall have been removed in the manner
hereinafter provided. Any vacancy in a committee shall be filled by the vote of
a majority of the whole Board of Directors at any regular or special meeting
thereof.
SECTION 3. Alternates. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee.
SECTION 4. Organization. Unless otherwise provided by the Board of
Directors, each committee shall appoint a chairman. Each committee shall keep a
record of its acts and proceedings and report the same from time to time to the
Board of Directors.
SECTION 5. Resignations. Any regular or alternate member of a committee
may resign at any time by giving written notice to the Chairman of the Board,
the President or the Secretary of the Corporation. Such resignation shall take
effect at the time of the receipt of such notice or at any later time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 6. Removal. Any regular or alternate member of a committee may
be removed with or without cause at any time by resolution passed by a majority
of the whole Board of Directors at any regular or special meeting.
SECTION 7. Meetings. Regular meetings of each committee, of which no
notice shall be necessary, shall be held on such days and at such places as the
chairman of the committee shall determine or as shall be fixed by a resolution
passed by a majority of all the members of such committee. Special meetings of
each committee will be called by the Secretary at the request of any two members
of such committee, or in such other manner as may be determined by the
committee. Notice of each special meeting of a committee shall be mailed to each
member thereof at least two days before the meeting or shall be given personally
or by telephone or other electronic transmission at least one day before the
meeting. Every such notice shall state the time and place, but need not state
the purposes of the meeting. No notice of any meeting of a committee shall be
required to be given to any alternate.
SECTION 8. Quorum and Manner of Acting. Unless otherwise provided by
resolution of the Board of Directors, a majority of a committee (including
alternates when acting in lieu of regular
10 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
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members of such committee) shall constitute a quorum for the transaction of
business and the act of a majority of those present at a meeting at which a
quorum is present shall be the act of such committee. The members of each
committee shall act only as a committee and the individual members shall have no
power as such.
SECTION 9. Compensation. Each regular or alternate member of a
committee shall be paid such compensation, if any, as shall be fixed by the
Board of Directors.
ARTICLE V.
OFFICERS
SECTION 1. Officers. The officers of the Corporation shall be a
Chairman of the Board of Directors and a President, each of whom shall be chosen
from the members of the Board of Directors, one or more Vice Presidents (one or
more of whom may be Executive Vice Presidents, Senior Vice Presidents or
otherwise as may be designated by the Board), a Secretary and a Treasurer, all
of whom shall be elected by the Board of Directors. Any two or more offices may
be held by the same person. The Board of Directors may also from time to time
elect such other officers as it deems necessary.
SECTION 2. Term of Office. Each officer shall hold office until his or
her successor shall have been duly elected and qualified in his or her stead, or
until his or her death or until he or she shall have resigned or shall have been
removed in the manner hereinafter provided.
SECTION 3. Additional Officers; Agents. The Chairman of the Board or
the President may from time to time appoint and remove such additional officers
and agents as may be deemed necessary. Such persons shall hold office for such
period, have such authority, and perform such duties as in these by-laws
provided or as the Chairman of the Board or the President may from time to time
prescribe. The Board of Directors or the Chairman of the Board or the President
may from time to time authorize any officer to appoint and remove agents and
employees and to prescribe their powers and duties.
SECTION 4. Salaries. Unless otherwise provided by resolution passed by
a majority of the whole Board, the salaries of all officers elected by the Board
of Directors shall be fixed by the Board of Directors.
SECTION 5. Removal. Except where otherwise expressly provided in a
contract authorized by the Board of Directors, any officer may be removed,
either with or without cause, by the vote of a majority of the Board at any
regular or special meeting or, except in the case of an officer elected by the
Board, by any superior officer upon whom the power of removal may be conferred
by the Board or by these by-laws.
SECTION 6. Resignations. Any officer elected by the Board of Directors
may resign at any time by giving written notice to the Chairman of the Board,
the President or the Secretary. Any other officer may resign at any time by
giving written notice to the Chairman of the Board or the President. Any such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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SECTION 7. Vacancies. A vacancy in any office because of death,
resignation, removal, or otherwise, shall be filled for the unexpired portion of
the term in the manner provided in these by-laws for regular election or
appointment to such office.
SECTION 8. Chairman of the Board of Directors. The Chairman of the
Board of Directors shall preside at all meetings of the shareowners and of the
Board of Directors and shall enforce the observance of the rules of order for
the meetings of the Board and the shareowners and the by-laws of the
Corporation. As requested by the President, he shall attend generally to the
Corporation's executive business and keep the Board of Directors appropriately
informed on the business and affairs of the Corporation.
SECTION 9. President. The President shall be the chief executive
officer of the Corporation and, subject to the control of the Board of
Directors, shall have general and overall charge of the business and affairs of
the Corporation and of its officers. He shall keep the Board of Directors
appropriately informed on the business and affairs of the Corporation.
SECTION 10. Executive Vice Presidents. One or more Executive Vice
Presidents shall, subject to the control of the Chairman of the Board and the
President, have lead accountability for components or functions of the
Corporation as and to the extent designated by the Chairman of the Board and the
President. Each Executive Vice President shall keep the Chairman of the Board
and President appropriately informed on the business and affairs of the
designated components or functions of the Corporation.
SECTION 11. Vice Presidents. The Vice Presidents shall perform such
duties as may from time to time be assigned to them or any of them by the
Chairman of the Board or the President.
SECTION 12. Secretary. The Secretary shall keep or cause to be kept in
books provided for the purpose the minutes of the meetings of the shareowners,
of the Board of Directors and of any committee constituted pursuant to Article
IV of these by-laws. The Secretary shall be custodian of the corporate seal and
see that it is affixed to all documents as required and attest the same. The
Secretary shall perform all duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him or her.
SECTION 13. Assistant Secretaries. At the request of the Secretary, or
in his or her absence or disability, the Assistant Secretary designated by him
or her shall perform all the duties of the Secretary and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
Secretary. The Assistant Secretaries shall perform such other duties as from
time to time may be assigned to them.
SECTION 14. Treasurer. The Treasurer shall have charge of and be
responsible for the receipt, disbursement and safekeeping of all funds and
securities of the Corporation. The Treasurer shall deposit all such funds in the
name of the Corporation in such banks, trust companies or other depositories as
shall be selected in accordance with the provisions of these by-laws. From time
to time and whenever requested to do so, the Treasurer shall render statements
of the condition of the finances of the Corporation to the Board of Directors.
The Treasurer shall perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her.
12 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
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SECTION 15. Assistant Treasurers. At the request of the Treasurer, or
in his or her absence or disability, the Assistant Treasurer designated by him
or her shall perform all the duties of the Treasurer and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
Treasurer. The Assistant Treasurers shall perform such other duties as from time
to time may be assigned to them.
SECTION 16. Certain Agreements. The Board of Directors shall have power
to authorize or direct the proper officers of the Corporation, on behalf of the
Corporation, to enter into valid and binding agreements in respect of
employment, incentive or deferred compensation, stock options, and similar or
related matters, notwithstanding the fact that a person with whom the
Corporation so contracts may be a member of its Board of Directors. Any such
agreement may validly and lawfully bind the Corporation for a term of more than
one year, in accordance with its terms, notwithstanding the fact that one of the
elements of any such agreement may involve the employment by the Corporation of
an officer, as such, for such term.
ARTICLE VI.
AUTHORIZATIONS
SECTION 1. Contracts. The Board of Directors, except as in these
by-laws otherwise provided, may authorize any officer, employee or agent of the
Corporation to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general
or confined to specific instances.
SECTION 2. Loans. No loan shall be contracted on behalf of the
Corporation and no negotiable paper shall be issued in its name, unless
authorized by the Board of Directors.
SECTION 3. Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, employee or
employees, of the Corporation as shall from time to time be determined in
accordance with authorization of the Board of Directors.
SECTION 4. Deposits. All funds of the Corporation shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may from time to time
designate, or as may be designated by any officer or officers of the Corporation
to whom such power may be delegated by the Board, and for the purpose of such
deposit the officers and employees who have been authorized to do so in
accordance with the determinations of the Board may endorse, assign and deliver
checks, drafts, and other orders for the payment of money which are payable to
the order of the Corporation.
SECTION 5. Proxies. Except as otherwise provided in these by-laws or in
the Certificate of Incorporation, and unless otherwise provided by resolution of
the Board of Directors, the Chairman of the Board, the President or any other
officer may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation to cast
the votes which the Corporation may be entitled to cast as a shareowner or
otherwise in any other corporation any of whose stock or other securities may be
held by the Corporation, at meetings of the holders of the stock or other
securities of such other corporations, or to consent in writing to any action by
such other corporation, and may instruct the person or persons so appointed as
to the manner of casting
13 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
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such vote or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal, or
otherwise, all such written proxies or other instruments as he may deem
necessary or proper in the premises.
ARTICLE VII.
SHARES AND THEIR TRANSFER
SECTION 1. Certificates of Stock. Certificates for shares of the stock
of the Corporation shall be in such form as shall be approved by the Board of
Directors. They shall be numbered in the order of their issue, by class and
series, and shall be signed by the Chairman of the Board, the President or a
Vice President, and the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation. If such certificate is countersigned
(1) by a transfer agent other than the Corporation or its employee, or (2) by a
registrar other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. 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, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent, or registrar at
the date of issue.
SECTION 2. Record Ownership. A record of the name and address of the
holder of each certificate, the number of shares represented thereby and the
date of issuance thereof shall be made on the Corporation's books. The
Corporation shall be entitled to treat the holder of record of any share of
stock as the holder in fact thereof and accordingly shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, except as required by law.
SECTION 3. Transfer of Stock. Shares of stock shall be transferable on
the books of the Corporation by the person named in the certificate for such
stock in person or by such person's attorney or other duly constituted
representative upon surrender of such certificate with an assignment endorsed
thereon or attached thereto duly executed and with such guarantee of signature
as the Corporation may reasonably require.
SECTION 4. Lost, Destroyed and Mutilated Certificates. The Corporation
may issue a new certificate of stock in the place of any certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate,
or such person's legal representative, to give the Corporation a bond sufficient
to indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 5. Transfer Agent and Registrar; Regulations. The Corporation
shall, if and whenever the Board of Directors shall so determine, maintain one
or more transfer offices or agencies, each in charge of a transfer agent
designated by the Board of Directors, where the shares of the stock of the
Corporation shall be directly transferable, and also one or more registry
offices, each in charge of a registrar designated by the Board of Directors,
where such shares of stock shall be registered, and no certificate for shares of
the stock of the Corporation, in respect of which a registrar and transfer agent
shall have been designated, shall be valid unless countersigned by such transfer
agent and registered by such registrar. The Board of Directors may also make
such additional rules and regulations as it may deem expedient concerning the
issue, transfer and registration of certificates for shares of stock of the
Corporation.
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SECTION 6. Fixing Record Date. For the purpose of determining the
shareowners entitled to notice of or to vote at any meeting of shareowners or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. If no record
date is fixed (1) the record date for determining shareowners entitled to notice
of or to vote at a meeting of shareowners shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held and (2) the record date for determining shareowners for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of shareowners
of record entitled to notice of or to vote at a meeting of shareowners shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 7. Examination of Books by Shareowners. The Board of Directors
shall, subject to the laws of the State of Delaware, have power to determine
from time to time, whether and to what extent and under what conditions and
regulations the accounts and books of the Corporation, or any of them, shall be
open to the inspection of the shareowners; and no shareowner shall have any
right to inspect any book or document of the Corporation, except as conferred by
the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the shareowners of the Corporation.
ARTICLE VIII.
NOTICE
SECTION 1. Manner of Giving Written Notice. Any notice in writing
required by law or by these by-laws to be given to any person may be delivered
personally, may be transmitted by electronic means or may be given by depositing
the same in the post office or letter box in a postpaid envelope addressed to
such person at such address as appears on the books of the Corporation. Notice
by mail shall be deemed to be given at the time when the same shall be mailed,
and notice by other means shall be deemed given when actually delivered (and in
the case of notice transmitted by electronic means, when authenticated if and as
required by law).
SECTION 2. Waiver of Notice. Whenever any notice is required to be
given to any person, a waiver thereof by such person in writing or transmitted
by electronic means (and authenticated if and as required by law), whether
before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE IX.
SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal" and
"Delaware".
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ARTICLE X.
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of
October in each year.
APPENDIX
PROCEDURES FOR SUBMISSION AND DETERMINATION OF CLAIMS FOR INDEMNIFICATION
PURSUANT TO ARTICLE III, SECTION 13 OF THE BY-LAWS.
SECTION 1. Purpose. The Procedures for Submission and Determination of
Claims for Indemnification Pursuant to Article III, Section 13 of the by-laws
(the "Procedures") are to implement the provisions of Article III, Section 13 of
the by-laws of the Corporation (the "by-laws") in compliance with the
requirement of subsection (H) thereof.
SECTION 2. Definitions. For purposes of these Procedures:
(A) All terms that are defined in Article III, Section 13 of the
by-laws shall have the meanings ascribed to them therein when used in these
Procedures unless otherwise defined herein.
(B) "Expenses" include all reasonable attorneys' fees, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in, a Proceeding; and shall
also include such retainers as counsel may reasonably require in advance of
undertaking the representation of an indemnitee in a Proceeding.
(C) "Indemnitee" includes any person who was or is, or is threatened to
be made, a witness in or a party to any Proceeding by reason of the fact that
such person is or was a director, officer, employee or agent of the Corporation
or is or was serving at the request of the Corporation as a director, officer,
employee or agent (except in each of the foregoing situations to the extent any
agreement, arrangement or understanding of agency contains provisions that
supersede or abrogate indemnification under Article III, Section 13 of the
by-laws) of another corporation or of any partnership, joint venture, trust,
employee benefit plan or other enterprise.
(D) "Proceeding" includes any action, suit, arbitration, alternative
dispute resolution mechanism, investigation, administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee unless the Board of Directors shall have authorized
the commencement thereof.
SECTION 3. Submission and Determination of Claims.
(A) To obtain indemnification or advancement of Expenses under Article
III, Section 13 of the by-laws, an Indemnitee shall submit to the Secretary of
the Corporation a written request therefor, including therein or therewith such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to permit a determination as to whether and what extent
the Indemnitee is entitled to indemnification or advancement of Expenses, as the
case may be. The Secretary shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors thereof in writing if a
determination in accordance with Article III, Section 13(E) of the by-laws is
required.
16 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
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(B) Upon written request by an Indemnitee for indemnification pursuant
to Section 3(A) hereof a determination with respect to the Indemnitee's
entitlement thereto in the specific case, if required by the by-laws, shall be
made in accordance with Article III, Section 13(E) of the by-laws, and, if it is
so determined that the Indemnitee is entitled to indemnification, payment to the
Indemnitee shall be made within ten days after such determination. The
Indemnitee shall cooperate with the person, persons or entity making such
determination, with respect to the Indemnitee's entitlement to indemnification,
including providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or otherwise
protected from disclosure and which is reasonably available to the Indemnitee
and reasonably necessary to such determination.
(C) If entitlement to indemnification is to be made by Independent
Counsel pursuant to Article III, Section 13(E) of the by-laws, the Independent
Counsel shall be selected as provided in this Section 3(C). If a Change of
Control shall not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Corporation shall give written notice to the
Indemnitee advising the Indemnitee of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the Independent Counsel
shall be selected by the Indemnitee (unless the Indemnitee shall request that
such selection be made by the Board of Directors, in which event the immediately
preceding sentence shall apply), and the Indemnitee shall give written notice to
the Corporation advising it of the identity of the Independent Counsel so
selected. In either event, the Indemnitee or the Corporation, as the case may
be, may, within seven days after such written notice of selection shall have
been given, deliver to the Corporation or to the Indemnitee, as the case may be,
a written objection to such selection. Such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the
requirements of "Independent Counsel" as defined in Article III, Section 13 of
the by-laws, and the objection shall set forth with particularity the factual
basis of such assertion. If such written objection is made, the Independent
Counsel so selected may not serve as Independent Counsel unless and until a
court has determined that such objection is without merit. If, within twenty
days after the next regularly scheduled Board of Directors meeting following
submission by the Indemnitee of a written request for indemnification pursuant
to Section 3(A) hereof, no Independent Counsel shall have been selected and not
objected to, either the Corporation or the Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent jurisdiction for
resolution of any objection which shall have been made by the Corporation or the
Indemnitee to the other's selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the Court or by such
other person as the Court shall designate, and the person with respect to whom
an objection is favorably resolved or the person so appointed shall act as
Independent Counsel under Article III, Section 13(E) of the by-laws. The
Corporation shall pay any and all reasonable fees and expenses (including
without limitation any advance retainers reasonably required by counsel) of
Independent Counsel incurred by such Independent Counsel in connection with
acting pursuant to Article III, Section 13(E) of the by-laws, and the
Corporation shall pay all reasonable fees and expenses (including without
limitation any advance retainers reasonably required by counsel) incident to the
procedures of Article III, Section 13(E) of the by-laws and this Section 3(C),
regardless of the manner in which Independent Counsel was selected or appointed.
Upon the delivery of its opinion pursuant to Article III, Section 13 of the
by-laws or, if earlier, the due commencement of any judicial proceeding or
arbitration pursuant to Section 4(A)(3) of these Procedures, Independent Counsel
shall be discharged and relieved of any further responsibility in such capacity
(subject to the applicable standards of professional conduct then prevailing).
(D) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification under the by-laws,
the person, persons or entity making such determination shall presume that an
Indemnitee is entitled to indemnification under the by-laws if the
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<PAGE> 18
Indemnitee has submitted a request for indemnification in accordance with
Section 3(A) hereof, and the Corporation shall have the burden of proof to
overcome that presumption in connection with the making by any person, persons
or entity of any determination contrary to that presumption.
SECTION 4. Review and Enforcement of Determination.
(A) In the event that (1) advancement of Expenses is not timely made
pursuant to Article III, Section 13(G) of the by-laws, (2) payment of
indemnification is not made pursuant to Article III, Section 13(C) or (D) of the
by-laws within ten days after receipt by the Corporation of written request
therefor, (3) a determination is made pursuant to Article III, Section 13(E) of
the by-laws that an Indemnitee is not entitled to indemnification under the
by-laws, (4) the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to Article III, Section 13(E) of the by-laws and
such determination shall not have been made and delivered in a written opinion
within ninety days after receipt by the Corporation of the written request for
indemnification, or (5) payment of indemnification is not made within ten days
after a determination has been made pursuant to Article III, Section 13(E) of
the by-laws that an Indemnitee is entitled to indemnification or within ten days
after such determination is deemed to have been made pursuant to Article III,
Section 13(F) of the by-laws, the Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of the Indemnitee's entitlement to such
indemnification or advancement of Expenses. Alternatively, the Indemnitee, at
his or her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association. The
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within one year following the date on which the Indemnitee first has
the right to commence such proceeding pursuant to this Section 4(A). The
Corporation shall not oppose the Indemnitee's right to seek any such
adjudication or award in arbitration.
(B) In the event that a determination shall have been made pursuant to
Article III, Section 13(E) of the by-laws that an Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced pursuant to
this Section 4 shall be conducted in all respects as a de novo trial, or
arbitration, on the merits and the Indemnitee shall not be prejudiced by reason
of that adverse determination. If a Change of Control shall have occurred, the
Corporation shall have the burden of proving in any judicial proceeding or
arbitration commenced pursuant to this Section 4 that the Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may be.
(C) If a determination shall have been made or deemed to have been made
pursuant to Article III, Section 13(E) or (F) of the by-laws that an Indemnitee
is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding or arbitration commenced pursuant to
this Section 4, absent (1) a misstatement or omission of a material fact in
connection with the Indemnitee's request for indemnification, or (2) a
prohibition of such indemnification under applicable law.
(D) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 4 that the
procedures and presumptions of these Procedures are not valid, binding and
enforceable, and shall stipulate in any such judicial proceeding or arbitration
that the Corporation is bound by all the provisions of these Procedures.
(E) In the event that an Indemnitee, pursuant to this Section 4, seeks
to enforce the Indemnitee's rights under, or to recover damages for breach of,
Article III, Section 13 of the by-laws or these Procedures in a judicial
proceeding or arbitration, the Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
expenses (of the types
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described in the definition of Expenses in Section 2 of these Procedures)
actually and reasonably incurred in such judicial proceeding or arbitration, but
only if the Indemnitee prevails therein. If it shall be determined in such
judicial proceeding or arbitration that the Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the
expenses incurred by the Indemnitee in connection with such judicial proceeding
or arbitration shall be appropriately prorated.
SECTION 5. Amendments. These Procedures may be amended at any time and
from time to time in the same manner as any by-law of the Corporation in
accordance with the Certificate of Incorporation; provided, however, that
notwithstanding any amendment, alteration or repeal of these Procedures or any
provision hereof, any Indemnitee shall be entitled to utilize these Procedures
with respect to any claim for indemnification arising out of any action taken or
omitted prior to such amendment, alteration or repeal except to the extent
otherwise required by law.
19 BY-LAWS OF ROCKWELL INTERNATIONAL CORPORATION
<PAGE> 1
Exhibit 5
[Letterhead of Chadbourne & Parke LLP]
December 23, 1997
Rockwell International Corporation
600 Anton Boulevard, Suite 700
Costa Mesa, California 92626
Dear Sirs:
In connection with the registration under the Securities Act
of 1933, as amended (the "Act"), by Rockwell International Corporation, a
Delaware corporation (the "Company"), of (i) the Company's debt securities in an
aggregate principal amount (or net proceeds, in the case of debt securities
issued at an original issue discount) of up to $1,000,000,000 (the "Debt
Securities") to be issued and sold by the Company from time to time in one or
more series in accordance with Rule 415 under the Act pursuant to an Indenture
dated as of December 1, 1996 (the "Indenture"), between the Company and The
Chase Manhattan Bank (successor to Mellon Bank, N.A.), as Trustee (the
"Indenture"), and (ii) the shares of Common Stock, par value $1 per share, of
the Company (the "Common Stock") and any associated Preferred Share Purchase
Rights of the Company (the "Rights")
<PAGE> 2
Rockwell International
Corporation -2- December 23, 1997
issuable or deliverable upon conversion or exchange of any convertible or
exchangeable Debt Securities, we advise as follows:
As counsel for the Company, we are familiar with the Restated
Certificate of Incorporation and By-Laws of the Company, each as amended to the
date hereof, and we have reviewed the Registration Statement on Form S-3 to be
filed by the Company under the Act with respect to the Debt Securities and the
shares of Common Stock and any Rights issuable or deliverable upon conversion or
exchange of any convertible or exchangeable Debt Securities (the "Registration
Statement") and the corporate proceedings taken by the Company in connection
with the authorization of the Debt Securities and the shares of Common Stock and
any Rights issuable or deliverable upon conversion or exchange of any
convertible or exchangeable Debt Securities. We have also examined originals, or
copies certified to our satisfaction, of such corporate records of the Company
and other instruments, certificates of public officials and representatives of
the Company, and other documents as we have deemed necessary as a basis for the
opinion hereinafter expressed. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the originals of all documents submitted to
us as copies. As to questions of fact material to this opinion, we have, when
relevant facts were not independently
<PAGE> 3
Rockwell International
Corporation -3- December 23, 1997
established, relied upon certificates of officers of the Company and appropriate
public officials.
On the basis of the foregoing, and having regard for such
legal considerations as we deem relevant, we are of the opinion that when (i)
the Registration Statement has become effective under the Act, (ii) the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended,
and (iii) the Debt Securities have been duly authorized, executed and
authenticated as provided in the Indenture and delivered against payment
therefor, (A) the Debt Securities will be legally and validly issued and will
constitute the valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the enforcement of creditors' rights in general
and general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (B) the shares of Common
Stock issuable or deliverable upon conversion or exchange of any convertible or
exchangeable Debt Securities, when and if issued or delivered in accordance with
the Indenture and the terms of such Debt Securities and in accordance with
resolutions of the Board of Directors of the Company or the Offering Committee
thereof, will be legally and validly issued, fully paid and nonassessable, and
any Rights issuable or deliverable with such
<PAGE> 4
Rockwell International
Corporation -4- December 23, 1997
shares of Common Stock upon conversion or exchange of any convertible or
exchangeable Debt Securities, when and if issued or delivered in accordance with
resolutions of the Board of Directors of the Company or the Offering Committee
thereof, will be legally and validly issued.
We express no opinion herein as to any laws other than the
laws of the State of New York, the General Corporation Law of the State of
Delaware and the Federal laws of the United States.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement. We also hereby consent to the reference to this
firm under the caption "Legal Matters" in the Prospectus constituting a part of
the Registration Statement.
Very truly yours,
CHADBOURNE & PARKE LLP
<PAGE> 1
Exhibit 25
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
-----
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
ROCKWELL INTERNATIONAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 25-1797617
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
600 ANTON BOULEVARD
SUITE 700
COSTA MESA, CALIFORNIA 92626
(Address of principal executive offices) (Zip Code)
---------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State
Plaza, Albany, New York 12223. Board of Governors of the Federal
Reserve System 20th and C Street NW, Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045. Federal Deposit Insurance
Corporation, 550 Seventeenth Street NW Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 10TH day of DECEMBER, 1997.
THE CHASE MANHATTAN BANK
By /s/ T.J. Foley
---------------------------
T.J. Foley
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1997, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................................... $ 11,760
Interest-bearing balances ........................................... 4,343
Securities:
Held to maturity securities .............................................. 2,704
Available for sale securities ............................................ 37,885
Federal funds sold and securities purchased under
agreements to resell ................................................ 27,358
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,370
Less: Allowance for loan and lease losses 2,760
Less: Allocated transfer risk reserve .... 13
Loans and leases, net of unearned income, --------
allowance, and reserve .............................................. 124,597
Trading Assets ........................................................... 64,630
Premises and fixed assets (including capitalized
leases) ............................................................. 2,925
Other real estate owned .................................................. 286
Investments in unconsolidated subsidiaries and
associated companies ................................................ 232
Customers' liability to this bank on acceptances
outstanding ......................................................... 2,212
Intangible assets ........................................................ 1,480
Other assets ............................................................. 11,117
--------
TOTAL ASSETS ............................................................. $291,529
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ..................................................... $ 86,574
Noninterest-bearing ............... $31,818
Interest-bearing .................. 54,756
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ............................................................... 69,887
Noninterest-bearing ............... $ 3,777
Interest-bearing .................. 66,110
Federal funds purchased and securities sold under agree-
ments to repurchase .......................................................... 45,307
Demand notes issued to the U.S. Treasury ..................................... 161
Trading liabilities .......................................................... 47,406
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........................... 4,578
With a remaining maturity of more than one year
through three years .............................................. 261
With a remaining maturity of more than three years ...................... 131
Bank's liability on acceptances executed and outstanding ..................... 2,212
Subordinated notes and debentures ............................................ 5,715
Other liabilities ............................................................ 12,355
TOTAL LIABILITIES ............................................................ 274,587
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ................................ 0
Common stock ................................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ..................... 10,294
Undivided profits and capital reserves ....................................... 5,414
Net unrealized holding gains (losses)
on available-for-sale securities ............................................. 7
Cumulative foreign currency translation adjustments .......................... 16
TOTAL EQUITY CAPITAL ......................................................... 16,942
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ......................................... $291,529
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the
above-named bank, do hereby declare that this
Report of Condition has been prepared in
conformance with the instructions issued by the
appropriate Federal regulatory authority and is
true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the
correctness of this Report of Condition and
declare that it has been examined by us, and to
the best of our knowledge and belief has been
prepared in conformance with the instructions
issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
